How Maintenance Waivers in Pre-nups Work in Colorado | Episode 166

It is common for couples to enter into pre-marital agreements prior to a marriage, often containing a waiver of maintenance.

But are these waivers enforceable? Well, in Colorado, not necessarily.  In this short how-to episode, Ryan explains an important case, Newman v Newman, which establishes that it goes against public policy for a court to enforce a maintenance waiver if it would be unfair or unconscionable.

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Transcript

Ryan Kalamaya (1s):
Welcome to Divorce at Altitude A Podcast. on Colorado Family Law. I'm Ryan Kalama Each week. Along with my business partner and co-host Amy Goscha, or an expert, we discuss a particular topic related to Divorce or co-parenting. in Colorado In addition, we have created a short series of lessons that will take you through the legal process of Divorce and answer your questions from simple to complex. Divorce isn, easy The, end of a marriage, especially when children are involved, brings a great deal of loss and change. We hope these practical tips and insights will help you on your journey to a new and better life.

Ryan Kalamaya (43s):
What happens in a Colorado Divorce if a party has waived maintenance in a premarital agreement? Well, I won't go into the details about the various requirements for an enforceable premarital agreement, but often people will engage in, in Agreements before they get married, and those Agreements will contain a waiver of maintenance. Are those enforceable? Well, not necessarily in Colorado, and the reason is that there is this important case, Newman v Newman, and it stands for the proposition that it's against public policy for a court to enforce a maintenance waiver if it would be unconscionable or unfair.

Ryan Kalamaya (1m 24s):
Now, let me give you an example. If our hypothetical Divorce clients, Eric and Melanie Wolf signed an agreement 10 years ago and it's said that Eric got all the property and that Melanie waived maintenance, then you know, if we enforce that agreement, she would receive nothing and she could be potentially a ward of the state or go on welfare and and be destitute and left homeless. The state doesn't want to have that responsibility and it would be unfair even though she willingly signed that agreement and it was an enforceable agreement. So other states will not enforce a property division, so Eric would not get all of the property.

Ryan Kalamaya (2m 7s):
But in Colorado, what we have is a provision or the ability for court to set aside or find that the maintenance waiver is unenforceable. So in that scenario, then we would look for what maintenance would be appropriate given the other circumstances in the various factors and formulas that of I've discussed in previous episodes. But the important thing is that maintenance Waivers, even it can be in an agreement, can be held unenforceable, and the parties could be a starting over or as if there was not a maintenance waiver to begin with.

Ryan Kalamaya (2m 47s):
Thanks for listening or watching this short lesson on the Divorce Altitude podcast. If you found this helpful, please leave a review or share with a friend. It does help for others that are going through or thinking about Divorce in Colorado. If you want find out more information, please visit Kalamaya dot law or Divorce at Altitude dot com and that's K A L A M A YA A Law. Remember, this is educational information, it's not intended to be legal advice. Please consult with an attorney about the particulars of your case. We're happy to answer questions. Feel free to give us a call at 9 7 0 3 1 5 2 3 6 5.