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Prenup Property Title Versus Ownership


A prenuptial agreement in Colorado allows couples to keep their separate assets as separate property during the marriage and predetermines the distribution of their marital assets should the marriage end in divorce. A well-executed prenuptial agreement drafted during a time when spouses are at their best in the relationship not only protects both spouses in the event of a divorce but may also define specific obligations and responsibilities during the marriage. It also allows the couple to decide how to divide their assets rather than leaving them in the hands of an impartial judge in Colorado divorce court.

Prenup Property Title Versus Ownership

Colorado is a Separate Property State

In separate property states like Colorado, the person named in the title owns the property. A good example is in real estate property. When real estate property is in only one spouse’s name, the property remains that spouse’s separate property even after marriage, while any property purchased during the marriage is marital property regardless of whose name appears on the title unless otherwise specified.

Inherited property belongs solely to the inheriting spouse, whether it’s inherited before marriage or during the marriage.

Allocating Separate Property in a Colorado Prenup

When a couple plans their wedding, it isn’t always only about the flowers and cake. Some couples also make common-sense plans for protecting their property in case of divorce, to ensure a child’s inheritance with or without a divorce, or to keep one spouse’s family legacy within the family. One way a prenuptial agreement does this is to define how a property is allocated in the event of a divorce or legal separation in Colorado. This can become quite complex. For example:

  • One spouse may wish the down payment made on a property to remain their separate property if they paid it from their separate bank account or if a parent gifted them the down payment
  • Each spouse may identify an ownership percentage of a jointly owned property on the title deed, and determine if they are joint tenants or tenants in common. Joint tenancy allows the property to pass directly to the joint tenant if one tenant dies without the need for probate, while a tenants-in-common agreement is subject to inheritance laws and can pass through the owner’s estate after their death

A skilled divorce attorney can explain how to best protect your interests when adding a property title to a prenuptial agreement or postnup.

Identifying Title Ownership Percentages

If a couple’s prenuptial agreement includes one spouse’s down payment of one-third of the purchase price as their separate property going forward, and the remainder as their 50/50 co-owned property, an attorney might recommend that the title deed identifies one spouse as the owner of two-thirds of the property while the other spouse owns the remaining one-third. 

Another example would be if one spouse retains ownership of the one-third down payment but the other spouse agrees to make the mortgage payments going forward, the spouse who pays the mortgage could have full ownership of the remaining two-thirds of the property.

This type of title deed helps to keep a prenuptial agreement enforceable in the event of a contentious divorce and protects each spouse’s share of ownership. Otherwise, the state would divide the property 50/50.

By defining title ownership as part of a prenuptial agreement, the spouses ensure that the state adheres to their terms during a divorce.

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