Divorce at Altitude: A Podcast on Colorado Family Law

Ep. 3 - Invalidating and Challenging Marital Agreements with Jim Bailey, Esq.

March 04, 2021 Ryan Kalamaya & Amy Goscha Season 1 Episode 3
Divorce at Altitude: A Podcast on Colorado Family Law
Ep. 3 - Invalidating and Challenging Marital Agreements with Jim Bailey, Esq.
Chapters
Divorce at Altitude: A Podcast on Colorado Family Law
Ep. 3 - Invalidating and Challenging Marital Agreements with Jim Bailey, Esq.
Mar 04, 2021 Season 1 Episode 3
Ryan Kalamaya & Amy Goscha

You’ve seen it in the news… Dr. Dre ripped up his prenuptial agreement and his ex-wife is claiming he owes her $2 million in spousal support each month. So, what actually happens when a prenup needs to be enforced? What do attorneys look for to determine the validity of a prenup?

In Episode 3 of Divorce at Altitude, Ryan Kalamaya and Amy Goscha bring on special guest Jim Bailey, one of Denver’s premier divorce lawyers and family law experts to discuss their thoughts on Dr. Dre’s situation and what Jim looks for in marital agreement documents, including how he would look at divorce client Eric Wolff’s prenup.

Highlights From This Episode:

  • Particular language attorneys look for in a marital agreement
  •  Why the year a prenup was drafted matters in the state of Colorado
  •  How attorneys determine if the negotiation process was sufficient and voluntary
  • Role of a consultant for another attorney in determining the validity of a prenup
  •  What happens with a divorce in another state
  • What happens with an instate divorce with an out of state marital agreement
  • Oral marital contracts and if they are enforceable in the state of Colorado

 About Jim Bailey

Jim was born and raised in Denver, Colorado. He graduated from the University of Colorado  in 1988 and graduated in 1992 from the University of the Pacific, McGeorge School of Law. He was elected to Order of the Coif and was honored as the Valedictorian of his graduating class.  Jim also served as a Law Clerk for the Honorable Luis D. Rovira, Chief Justice of the Colorado Supreme Court. Jim has written a number of articles on legal issues and was also a Legislative Review Writer, Volume 21, Pacific Law Journal and co-author of the Colorado Continuing Legal Education publication on Marital Agreements. Jim graduated from the National Institute of Trial Advocacy and is now a member of the faculty of that distinguished organization. Jim is a member of the Colorado Trial Lawyers Association and the Faculty of Federal Advocates, and also a member of the Legislative Committee, Family Law Section and Probate Section of the Colorado Bar Association. Jim’s practice concentrates on litigation, with an emphasis in family law and commercial matters. In addition, Jim has a substantial appellate practice.

What is Divorce at Altitude? 

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado. 

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here

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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.

Show Notes Transcript

You’ve seen it in the news… Dr. Dre ripped up his prenuptial agreement and his ex-wife is claiming he owes her $2 million in spousal support each month. So, what actually happens when a prenup needs to be enforced? What do attorneys look for to determine the validity of a prenup?

In Episode 3 of Divorce at Altitude, Ryan Kalamaya and Amy Goscha bring on special guest Jim Bailey, one of Denver’s premier divorce lawyers and family law experts to discuss their thoughts on Dr. Dre’s situation and what Jim looks for in marital agreement documents, including how he would look at divorce client Eric Wolff’s prenup.

Highlights From This Episode:

  • Particular language attorneys look for in a marital agreement
  •  Why the year a prenup was drafted matters in the state of Colorado
  •  How attorneys determine if the negotiation process was sufficient and voluntary
  • Role of a consultant for another attorney in determining the validity of a prenup
  •  What happens with a divorce in another state
  • What happens with an instate divorce with an out of state marital agreement
  • Oral marital contracts and if they are enforceable in the state of Colorado

 About Jim Bailey

Jim was born and raised in Denver, Colorado. He graduated from the University of Colorado  in 1988 and graduated in 1992 from the University of the Pacific, McGeorge School of Law. He was elected to Order of the Coif and was honored as the Valedictorian of his graduating class.  Jim also served as a Law Clerk for the Honorable Luis D. Rovira, Chief Justice of the Colorado Supreme Court. Jim has written a number of articles on legal issues and was also a Legislative Review Writer, Volume 21, Pacific Law Journal and co-author of the Colorado Continuing Legal Education publication on Marital Agreements. Jim graduated from the National Institute of Trial Advocacy and is now a member of the faculty of that distinguished organization. Jim is a member of the Colorado Trial Lawyers Association and the Faculty of Federal Advocates, and also a member of the Legislative Committee, Family Law Section and Probate Section of the Colorado Bar Association. Jim’s practice concentrates on litigation, with an emphasis in family law and commercial matters. In addition, Jim has a substantial appellate practice.

What is Divorce at Altitude? 

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado. 

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here

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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.

Ryan Kalamaya:
Hey everyone. I'm Ryan Kalamaya.

Amy Goscha:
And I am Amy Goscha.

Ryan Kalamaya:
Welcome to the Divorce at Altitude, a podcast on Colorado family law.

Amy Goscha:
Divorce is not easy. It really sucks. Trust me, I know. Besides being an experienced divorce attorney, I'm also a divorce client.

Ryan Kalamaya:
Whether you are someone considering divorce or a fellow family law attorney, listen in for weekly tips and insight into topics related to divorce, co-parenting and separation in Colorado.

Ryan Kalamaya:
Welcome to another episode of Divorce at Altitude. I'm Ryan Kalamaya, joined with my cohost, Amy Goscha. We're excited to bring on our first guest ever, James Bailey. Jim is a family law attorney based in Denver. He was born and raised in Denver before graduating as the valedictorian of his graduating class at the University of the Pacific McGeorge School of Law in 1992. After law school, he clerked for the Chief Justice Luis Rovira at the Colorado Supreme Court before entering private practice. Jim has received numerous awards, such as being named Colorado Super Lawyer and Best Lawyers in America. He has written about marital agreements, including the use of experts in domestic relations cases in The Practitioner's Guide to Colorado Domestic Relations Law. He has given numerous presentations, including one that I attended in 2014. Amy, I think you were there as well, on the new Uniform Marital and Premarital Agreement Act at the Family Law Institute. He's a member of the faculty at NITA in Boulder. Presently he's a shareholder at SVC Law Firm in Denver and leads their litigation and family law team. Did I cover everything, Jim?

Jim Bailey:
That sounds pretty close. Yeah.

Ryan Kalamaya:
Well, welcome. How are you doing

Jim Bailey:
It's good. It's a nice snowy day today, so it's good to be inside.

Ryan Kalamaya:
Indeed. Well, I thought where we'd start off is with a story just to provide a framework for our discussion today on challenging premarital agreements. And so what we've done on this show is to have Eric Wolff as a hypothetical client. And we told a story in our first episode about how he's in the counselor's office and his wife tells him that she's hired a divorce lawyer and he's running through these various issues in his head about his business and what's going to happen with the house. Let's assume that he feels a sense of relief, which was in the original story, but he also feels a sense of relief because he got a premarital agreement before Melanie and him ever got married. And he used a general practitioner to draft the agreement for him. He's got a copy of the agreement. It's got a financial statement attached. It isn't dated or initialed, and Melanie didn't do a financial and he comes into your office, what is the process of that meeting with Eric Wolff and you, Jim?

Jim Bailey:
Yeah, the first meeting is always a triage. We're going to be sitting back and we're going to have some conversations about what's the magnitude of the marital estate. What are our risks? What are our benefits of proceeding? And once we start to get into a premarital agreement, I'm going to call it the marital agreements to be overbroad. Once we get into that specific rubric, we're going to really sit back and have a conversation about what's going on with that. How it impacts the various obligations. And it's probably the piece of paper I'm going to ask for him to hand me to read. It's the first one because it really can be significant.

Ryan Kalamaya:
I don't know about your practice, but the tax returns and some of those core documents, that's often helpful. And in this case you would certainly ask them ahead of time or the first thing you would ask is a copy of the agreement, right?

Jim Bailey:
Yeah. I always try to get a client to come into that first conference with a fairly broad assortment of the, and I'm going to use a bad word, which is the form 35.1 disclosures, which are the mandatory disclosures. There'll be tax returns, bank account statements, business financials. It really gives me a description of what the marital estate is looking like. I'm also usually asking for a handwritten summary of, hey, here's what I think it is, which helps accelerate it. The moment I hear prenuptial agreement, that's going to be the first issue. And yes, I'm actually going to ask him to send it to me by email these days so I can take a look at it and try to prep up what it might mean for the meeting.

Ryan Kalamaya:
Okay. So you get the agreement. What are the things you're specifically looking for?

Jim Bailey:
Well, the first thing when I get it is I'm going to actually scroll down to the end. I'm going to want to make sure it's signed. I want to see what the date is of the agreement. I want to see if there are disclosures. I want to see what the disclosures look like. And so we're really focusing in on some of the defenses that exist for the marital agreement with that analysis. So you've said this agreement is undated. We're going to have a conversation about that. That's going to be the topic of where almost the next series of questions is going to be. It's my understanding that the wife did not tender a set of disclosures. We're going to have a conversation about that outcome. There's only one set of disclosures. Then I'm going to go back through with really a second cut, where I'm going to try to highlight some of the issues to go through here and to say, how does it treat property?

Jim Bailey:
How was separate property defined? How is marital property defined? Is there a maintenance waiver here? Does this have a severability clause that's associated with it and trying to get a very broad brush of what this agreement might mean? And then to have a conversation about it. And at this phase, I think it's a different analysis than happens just a little bit later when you start to go through what I call is kind of with a fine tooth comb. Where you really take a look at what does this language mean? I know what it's supposed to mean, but what did this general practitioner actually draft here?

Ryan Kalamaya:
Right. It's fair to say that most people who are going into these premarital agreements, the objective oftentimes is to carve out separate property. But how it actually does that in detail is what you're talking about with a fine tooth comb.

Jim Bailey:
Yeah. Many of the prenuptial agreements that are coming across my desk these days have, I want to use the word hyper, very specific definitions of marital and separate property. And so they're defining marital property as relating to assets. A normal one is going to say everything that's listed on exhibit A is my separate property. What I'm seeing now are ones that say, the separate property is all the property that we bring into the marriage, including the stuff that's on A. See how that's just a little bit different. Or you can be looking at an agreement that says all of my separate property is all of my separate property, except for the growth that may be existing on these assets or the following list. It's a very particularized look at it.

Ryan Kalamaya:
Now, we mentioned there was no date for Eric and Melanie's. We did that on purpose. So let's assume that they got married in 1983, why would that matter compared to if they got married in 1998 or when the Broncos won the Super Bowl? So why would those two dates differ?

Jim Bailey:
Well, there's actually three dates that we're going to be caring about, right? There are really three different standards under which you're going to approach the validity of a marital agreement. Now I get to sound esoteric and say, Colorado has recognized marital agreements since the 19th century. And as you go back through there, you can find some very old cases that relate to and enforcing marital agreements. And that really culminates in a Supreme Court decision Newman vs Newman, which was decided, I actually don't know the date. I'm going to assume it's 1978.

Ryan Kalamaya:
I think it was 1982.

Jim Bailey:
Oh. It establishes a common law threshold for the determination of a marital agreement. That standard is slightly different than the standard that came into being when the legislature then turned their attention to marital agreements in 1986. And then you have what's called the Colorado Marital Agreement Act, the CMAA. And again, standards are a little bit different. That goes forward until we get to the Uniform Marital and Premarital Agreement Act, which becomes effective in July 2014. And each of those, although they all have common threads, they all have similar provisions for the review of maintenance and for agreements concerning property. They all have slightly different themes as it relates to enforceability.

Ryan Kalamaya:
Just briefly give us an idea of what those themes are.

Jim Bailey:
Under the Newman decision, you really have a theme that says you might be stuck with your contract. Party should enter into a marital agreement with some caution because they may get what they bargained for. And so Newman really comes forward with a common law, I think contract approach to marital agreements. When the legislature then adopts the Colorado Marital Agreement Act, it actually changes slightly some of the standards from the Newman approach. And you get into a system that begins the process of not treating a marital agreement as a contract. It starts to become into saying this is a special vehicle because of the relationships that exist between spouses. And so then it sets forth just slightly different ground rules for testing it. And there is some very good case law in legislative history that says those two standards are supposed to be equal and equivalent. And I understand that's what that says. I understand that's what the courts say about it. It's just not true. There are two different standards.

Ryan Kalamaya:
Let's assume that you get a call from Melanie's attorney. Eric hires you. You've got the premarital agreement. You're feeling good. There might be a couple issues, the financial disclosures aren't initialed. They're not attached, but you get a call from Melanie's attorney. The divorce attorney that she referenced in the counselor's office. And the attorney says, we're going to be challenging the validity. We're going to try to seek to set this agreement aside because it's not beneficial to Melanie. What happens then, just generally from a process standpoint?

Jim Bailey:
The conversation with her attorney is important because the first thing I'm going to try to do is I'm going to bifurcate the hearing. I'm going to try to have a different hearing on the validity. Then I am going to have it at the time of the permanent orders because that's really going to save some people financially. It's very expensive to try a permanent orders hearing where you both presume and don't presume the validity of the marriage.

Ryan Kalamaya:
And is that because deciding the value or the disposition of marital property is going to change dramatically depending on if the agreement is or is not valid? So we're going to first decide, okay, how are we going to deal with property and who gets what? Right.

Jim Bailey:
Yeah, that's exactly right.

Ryan Kalamaya:
And a little teaser, we're new to the podcast world, but this is a teaser, Jim. So follow me. And that Dr. Dre, we're going to talk about later on, that case has been recently set for a validity hearing. So, okay, that's what you're doing. How do you get to that validity hearing and what are the things that you're doing? Are you going to reach out to Eric's attorney, the general practitioner and ask him for things?

Jim Bailey:
We're going to reach out to everybody and ask everybody for things. One of the things, we're probably going to start by issuing some discovery out to wife so that she can set forth every reason why she thinks that the agreement is not valid. And then we'll tailor some discovery and some of our exploration to try to meet those needs. So if she says, well, I signed it on the day of the wedding, okay, that's a defense. We can start to tailor our defense for that. When she says, I didn't have an attorney, well, we can have a conversation about what that looks like. But generally you're going to want to issue discovery and then the next step is to get the attorney's files. You both want your client's file and you also want the other side's file.

Ryan Kalamaya:
You're going back to the general practitioner and you're saying, hey, give me your billing statements, give me your drafts, all the things that you have in your file, and then Melanie's attorney, the same thing?

Jim Bailey:
Absolutely.

Ryan Kalamaya:
Why is that important?

Jim Bailey:
Melanie's attorney is different because you've got attorney client privilege issues that are going to lurk through and be weighed. So that's not a phone call, that's a slightly different process, but I want to have a conversation with the attorney about what happened and then get a copy of his file very early in that process.

Ryan Kalamaya:
And the reason, would you agree, is that the billing statements show the negotiation, show the time lapse, show the various things that that attorney is doing in the drafts. Amy and I had a previous episode where we really talked about the negotiation being important and the drafts being important. Can you comment on why that might be important to see that evidence in the file?

Jim Bailey:
Yeah. I'm going to define it this way, which is to say that there is a question of voluntariness, whether you're going to call that voluntary or duress. An agreement that's been negotiated, there's been a rational opportunity to review it and to discuss it. And so that's what you're looking for as you go back through a negotiation process. An agreement that has been negotiated, I think it's relatively hard to say I signed it subject to duress. And there's case law that clearly suggests that.

Ryan Kalamaya:
Right. And then you would see on that signature block to the agreement that there was a notary, and then you would then ask that notary to be in a deposition and ask them if they can remember, was there force, was there coercion, was there duress, at the time of the signing?

Jim Bailey:
Yeah, exactly.

Ryan Kalamaya:
These cases, they can often be 10, 20 years. How do you deal with that because people's memories can oftentimes... I mean, well, if the general practitioner for Eric says, I don't know what you're talking about or I don't have the copy of his file.

Jim Bailey:
I think you start to talk about is it your business practice. Is it your business practice to make sure that he understood the agreement? Is it your business practice to make sure that she had disclosures? Is it your business practice to make sure that she didn't sign it under duress? Had you seen duress, would you have done something to stop it? And so the attorney themselves, while they can't remember, there are business practices relevant towards determining what they did or their conduct at the time of the execution. And, by the way, that's especially true of the notaries. The notaries, as they're approaching these issues, never remember what this person is. And you're hoping if they have their notary books still and it hasn't been retained somewhere else. The only questions you're going to get from them are business practice. Is it your business practice to let somebody who is crying hysterically sign an agreement? And approach it that way.

Ryan Kalamaya:
Yeah. Right. Because I mean, most of the time these notaries, they're signing deeds, they're the go-to person in these law firms. And they've notarized hundreds of documents and probably can't remember 10 years later. And if they do, that might mean something because they might say, I remember there was a woman crying and that might be an issue.

Jim Bailey:
Yes, absolutely. Also, the notaries are coming from banks. And so you have to be cognizant that a bank person isn't going to have any memory at all.

Amy Goscha:
And Jim, do you find it helpful to depose any of the friends or family that were at the wedding if there was a duress claim?

Jim Bailey:
It's going to depend really upon what's going on with the duress climate. And I'm going to change duress to voluntariness. I would have a conversation with my client's friends and my client's family. That is something that I assume is going to be more supportive of at least our positions. If I start to hear an interesting tale, whether it's in the discovery responses or whether it's going to be from my own client's witnesses, only then will I start to say, let's talk with Melanie's parents. Let's have a conversation with some of the other friends. Perhaps I'm even going to pick out a private investigator to go interview potential witnesses, to try to get a state or a sense of what's going on.

Amy Goscha:
So we've talked, Jim, a lot about depositions and discovery when Eric came into your office and when you're dealing with Melanie and Melanie's attorney. At what point are experts involved in these types of cases?

Jim Bailey:
Well, you have to be careful as you're approaching experts in these type of cases. My suggestion would be, you're always approaching somebody first as a consultant. And so the attorney hires somebody to consult with who may have some more broader information about what some particularized issues are. You're trying to do that to preserve privilege and preserve a work product. If the consultant says you're screwed, you've got big ass problems here, you want that to be in a mechanism that's not going to permit it to be disclosed to the other side. Once you've gone through the consultant phase, you can have a conversation about whether or not you can have an expert.

Jim Bailey:
And that is not necessarily going to be granted by the court. Experts who are testifying as to marital agreements are testifying as to questions of law. And questions of law are within the "exclusive province of the trial court". And knowing that when you issue an expert report you always reference that because most judges will permit expert testimony on these matters because they want the opportunity to be educated. They're looking for as much information as they can get. They want to go beyond the mere arguments of counsel and hear somebody tell a story about why this agreement is or is not enforceable. So you have this great dialectic, right? This tension between what the law provides and what reality is. And you have to be prepared to address that as a practitioner.

Amy Goscha:
And how did that come about in your practice? You've served as a consultant before in these types of cases. If you could talk a little bit about that, that would be great.

Jim Bailey:
Way back when the world was pure and I was a young baby attorney, I started to go through a process of litigating as the associate, right? I'm the pasty faced kid who's in the back of the library, going through the cases from the time of the Magna Carta to the present. And I built up some expertise just from doing that as my supervising partner was trying the case, which then I transitioned into starting to try my own cases. As that happens, I was invited to write The Colorado Practitioner's Guide to Domestic Relations Law with Steve Epstein. And so as we formulated that, I started to develop a little bit of a reputation. Okay. Put that over to the side there. At the same time, we had a series of interesting marital agreement cases that I was working on that really involved, and I had set the question of [calming 00:19:01] the agreement.

Jim Bailey:
We developed something that we call polishing the stone, which was just to work the agreement over as much as you possibly can to see if we were trying to set it aside. To see what you can do to set aside an agreement that on its face, looked to be valid. So with that and the culmination of those experiences, you would start to have informal conversations with attorneys. Somebody calls me up, hey, I got a question, you have a conversation. And that very quickly developed into more than an informal relationship, when an attorney really wants to sit back and to say, hey, let's have a conversation about the discovery that we should be issuing here. Let's have a conversation about different approaches. Are there any landmines? And the kind of review process that an expert can give you is different because they're not an advocate. They're supposed to be looking at it from a neutral standpoint. Whereas as an advocate myself, I am profoundly guilty of believing my own BS. And so whenever the attorney looks at the agreement, they're always looking at it through a set of glasses that are slightly rose colored and a consultant's not going to do that for you.

Amy Goscha:
We'll change the scenario a little bit. Let's say that instead of you wearing the hat of Eric's attorney, that Eric's attorney calls you as a consultant, can you walk through the process as to what you do in that scenario when you get a call from an attorney asking you to be a consultant?

Jim Bailey:
It's really not that different. Generally, the attorneys will call me and ask me to be an expert first, and then I will be shifting our relationship into one of a consultant. As I'm approaching it, I'm always starting with, do you really need a consultant here? Is there something about this agreement that's going to warrant that expense or not? And the first call is always free, right? And so you can have a long conversation. You can look at the agreement. Usually I get involved in other people's cases with a telephone call from an attorney, and we're going to start to have a conversation about what the issues are, really with the intention of trying to decide what they're looking for and what they might need. There are marital agreements that are simple, they're clear, they appear to be valid. I'm not so sure what I can offer as either an expert or as a consultant.

Jim Bailey:
But when they do make the call, they're usually looking for an expert. I usually try to transition them off at the beginning into a consulting role just because I've seen enough of these where I can help. I can help draft the discovery. I can help set up what the defenses might look like. Once we've gone past that consultant, then we have a conversation of what trial is going to look like and whether or not you need to have expert testimony on it. Who is your judge? Again, in these areas, many judges won't permit testimony because it's an area of law. In which case we're going to have a conversation about, do you want me to enter as co-counsel and to argue these issues to the judge, as "someone who is more familiar with", as you're going through it. And then the final real expression comes from drafting the opinion. I always try to make sure that people understand I'm not an advocate when I'm an expert. I have to have an opinion that I actually believe and sometimes that can be hard for attorneys to hear if your opinion is different than the one that they're hoping it's going to be.

Ryan Kalamaya:
Well, and Jim, without referencing specific cases, I have called you and asked you about whether you could help me out on a case and you said, nope, because I don't agree with what your client and you are trying to do, which I appreciate. You're a straight shooter. But I think that that's helpful at the onset to understand what your role is.

Jim Bailey:
There's a foray that's going on here that we should talk about, which is I'm going to call it the Costanza Effect, which is a litigant and a litigator are always looking through stuff through their own eyes. And so there are cases where I've taken a look at an outcome and I so fervently believe in that outcome until hypothetically I lose, if I ever lose. And then you look at it and go, oh yeah, that makes complete sense, right? Of course, that's right. That's the way it should have been, just because you're so trained to advocate as an attorney.

Amy Goscha:
So, Jim, let's change the scenario a little bit. Let's say that Eric and Melanie, they entered their marital agreement in Colorado and then moved to another state and were getting divorced in another state. And you get a call from Eric's attorney who is in, let's say California, does that happen? Do you serve as a consultant for out of state divorces?

Jim Bailey:
Well, yeah. One is, out of state divorces or in state divorces with out of state prenuptial agreements, require expert testimony because then the court has not the exclusive determiner of the law because it's the law of another jurisdiction. And so under those cases, it's appropriate to opine to the court what the law is. And it's clear that the court is going to require some education on what the law of Colorado would be as opposed to California. And you're going to get into some of those issues. And so, one, whenever someone walks into my office with a marital agreement from another state, my first call is, let's try to figure someone to have a conversation about what this means before we go forward. And it's a very frequent call that I get from other jurisdictions.

Ryan Kalamaya:
And Jim, to kind of put an exclamation point on that point is, if someone is in Chicago and they have a premarital agreement drafted by a Chicago divorce lawyer, and then they moved to Boulder and the premarital agreement says, Illinois law applies. You're having to reach out to an Illinois expert on Illinois law because it's different than Colorado law. And then the vice versa, if someone has a premarital agreement or a marital agreement in Colorado and then moves to California and it has a choice of law provision for Colorado, they're having to apply Colorado law in that circumstance, which they're unfamiliar with.

Jim Bailey:
Yes, that's correct. I agree with that.

Amy Goscha:
Okay. So let's change the scenario a little bit. So Eric and Melanie walk out of the counselor's office and they reach an oral agreement that their retirement accounts are separate property. And then Melanie goes to file for divorce. What happens under that scenario?

Jim Bailey:
So that's the Zander case. The Colorado Supreme Court just came down with an opinion that addresses those issues. And I have to be somewhat careful what I say because I assisted in drafting an amicus brief in the case. But the Colorado Supreme Court really made it clear that there is a different approach to marital agreements than there might be for contracts. And so if somebody has an oral contract, that oral contract is almost always enforceable, especially if there's been some performance. That's a contractual remedy and we can modify the terms of a contract orally if we do so under specific circumstances. The Supreme Court has really said, that's no longer holding true for marital agreements. That marital agreements are required to be in writing, that you can't have an oral marital agreement and have it comply with the Colorado Marital Agreement Act.

Amy Goscha:
And can you talk a little bit about the partial performance argument and how that's important in that decision?

Jim Bailey:
I think the partial performance argument is more than important in the decision. Well, one is, the Zander decision says that under the Colorado Marital Agreement Act, that partial performance is not sufficient. That you can't prove the existence or waive the writing requirement by establishing partial performance. There are questions about the way that the Zander decision is applying to what is the new law. And so under the Colorado Marital Agreement Act, that's what Zander was interpreting when it entered into its order. Now you're going to transition that over to the Uniform Marital and Premarital Agreement Act. I'm not sure that that transition is going to be equivalent or straight. The language of the act has very specific inclusion of defenses that are not available under the CMAA. And so I think we all will get the opportunity here in the next five or so years to litigate partial performance under the Uniform Marital Agreement Act.

Amy Goscha:
Yeah. So possibly it could have a different outcome.

Jim Bailey:
Yeah.

Ryan Kalamaya:
Yeah. Jim, one thing I wanted to clarify, what's an amicus brief. For people that don't know what amicus means, what is that?

Jim Bailey:
I'm going to answer that with a long story. So grab a cup of coffee. Back when the world was pure, right, I clerked for the chief justice of the Colorado Supreme Court, Luis Rovira, and one of the questions that would come up in briefs and come up to the judges, all we got to do is to write memos for the court. What would come up to the judges was a question of, are they looking for some of the public policy issues or some of the specialized area of law as they're approaching their decision, and when they want that, they will request amicus briefs. And an amicus brief, amicus means friend, you're tendering a brief as a friend of the court, arguing from a public policy position. As I assisted in the draftsmanship of a portion of the Zander amicus brief, I was writing it on behalf of the Colorado Bar Association, Family Law Section (Amicus Brief Committee). And you get that detail trying to present the positions of the Colorado Bar Association Family Law Section to the court and advising it the way that we were viewing the case law and the outcome that we thought would be appropriate.

Ryan Kalamaya:
I mean, there's no case reported opinion or guidance really on the Uniform Act because, and you referenced earlier, I think it was passed in 2013, but then enacted July 2014. And we just haven't seen, even though there's been a surge of divorces with COVID, we just haven't seen any opinions make their way up to give some guidance on how to apply that. But if it was, then in that circumstance, you might be writing an amicus brief in connection with the law on the Uniform Colorado Act. Right.

Jim Bailey:
Well, yes and no. I think that an amicus brief is an honor to write and it's an honor to be able to write on behalf of a community. It's really the community that asks you to do that. The court simply asks for the brief. And right now, I think we're starting to see that first wave of the Uniform Marital Agreement Act, the new act. The first wave of divorces come through here, where we're testing those agreements. And so I think we'll see some guidance from the court of appeals on these areas. I'm sure that I will have the opportunity to participate in that guidance.

Ryan Kalamaya:
I'm sure you will. Let's switch to our final gear. Before we started recording, you mentioned your sons are into the Grateful Dead. Let's talk about Dr. Dre, another musical icon. So he's going through a divorce in California when we were recording this. He's represented by the divorce diva, Laura Wasser, who represents all the of Hollywood stars. And they have set a hearing. There was a premarital agreement. I think it was 1996. So in Colorado it would fall within the CMA. His wife reportedly is claiming coercion. What were the questions that you would ask if you were representing Dr. Dre or kind of your general observations if you were a judge in that case, on the coercion claim?

Jim Bailey:
Yeah. I'm going to change coercion to voluntary again. And the question here is if you're talking about duress or coercion, the issue is, did the person act of their own free will? And it's not a question of merely making a good or a bad decision in the moment, it's a question where somebody actually usurps your ability to make a decision freely. And so that's the question of duress as you're approaching it. Someone who's represented by an attorney, it is my humble opinion, relatively hard to prove coercion because one would assume that the attorney is operating as a buffer between what's going on. Now having said that, there is case law that can find coercion in a variety of different settings.

Ryan Kalamaya:
I mean, she reportedly has said that he tore it up and said, I hate this agreement or this agreement. Can you comment on that in terms of Colorado and how that might play out?

Jim Bailey:
I think the question is whether or not by tearing it up, he has revoked the agreement. And especially under now the Zander decision that we just talked about. Colorado law is clear that a revocation or amendment modification of a marital agreement has to be in writing. And so the act itself of ripping up the marital agreement, there's a real risk of courts going to say, that's not a writing because it's not signed by the parties and there aren't any disclosures that are associated with it. In the same vein is, what is the act of tearing it up, right? If the act of tearing it up is, I hate this document, that expression doesn't relate to revocation. That's just a question of quality. And so as she approaches that, I think she's going to have a significant uphill battle in proving that the tearing up of the marital agreement effectuated a revocation.

Ryan Kalamaya:
Yeah. And I've seen cases where a claim of abandonment has come up, which is obviously different than revocation, where parties, they just basically disregard it. And there's actually a couple of cases. There's [remarriage 00:32:19] of Zimmerman, and some other cases where people just disregard their agreement and have a joint business, even though they said, they're going to keep everything. And at least from my perspective, that is often the more persuasive argument, but the revocation is a real challenging. And it's set for five days. I think her attorneys are claiming $2 million in spousal support per month, as well as $5 million. It's all over the news. I think just based on what I've read, it's just kind of a litigation, kind of leveraged play where she's just trying to obtain more money than what she would otherwise get under the agreement, which is oftentimes what happens in these kinds of situations.

Jim Bailey:
Yeah, I absolutely agree. I'm going to disagree with you though. Right. One of the questions that's going to come up, remember we were talking about the three different standards. The decision, the abandonment issues really are coming up under the Newman decision, are coming up as a Premarital Agreement Act. And so there are those of us who have attempted to distinguish them on that ground saying that you can't abandon an agreement now because it has to be in writing. Those arguments are met with varying success by different varying judges.

Ryan Kalamaya:
Yeah, no, fair enough. I mean, I think in remarriage of Young, was the Dutch couple that they got married in 1954 and then they just disregarded it and the husband forgot about it and then found it miraculously when he got divorced. But I, at least, I find the kind of cases in the history fascinating. Jim, who would have the burden of proof in a challenge to a premarital agreement if Dr. Dre's case was here in Colorado.

Jim Bailey:
Well, there's really two different burdens that you're going to be approaching. The first one is there is a burden to establish the existence of an agreement. And that will be on the person who wants to enforce the marital agreement. They'll have to show just some of the core requirements. Here's a document. It happens to be a writing. It's signed by people. I would suggest that they're going to have to have at least some information that relates to the disclosure. Once they've done that, the other side or the person who is contesting the validity of the marital agreement bears the burden of establishing that it's invalid under any of the enumerated reasons. Whether that's going to be because it's unconscionable, the maintenance waiver provisions, disclosure provisions, they will also bear the burden of establishing that. And especially as it relates to the voluntariness or the disclosure issues.

Ryan Kalamaya:
Well, Jim, I think that that's a good way to end things. For people that don't know you are interested in finding out more about you, can you tell our listeners how they get in touch with you? What's the best way to find you?

Jim Bailey:
The best way to find me is by email. My email address is [email protected] Send me an email. I'm happy to talk. Obviously I love the sound of my own voice.

Ryan Kalamaya:
Well, they can't hear the lovely sound of your voice on email, but just in case they want to call you, what's a good phone number for you.

Jim Bailey:
(303) 298-1122.

Ryan Kalamaya:
Great. Thank you.

Ryan Kalamaya:
Hey everyone, this is Ryan again. Thank you for joining us on Divorce at Altitude. If you found our tips, insight or discussion helpful, please tell a friend about this podcast. For show notes, additional resources or links mentioned on today's episode visit divorceataltitude.com. Follow us on Apple Podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find Amy and me at kalamaya.law or (970) 315-2365, that's kalamaya.law.