If you don’t have a plan for your divorce or death, the state has a plan for you. A lot of folks don’t like those plans when they find out what they are – but it’s often too late to change them when they find out. I try not to be doom and gloom about what can happen without a prenup because I really want people to go into this process from a standpoint of collaboration. But I have seen some outcomes as a former divorce litigator that seem incredibly unfair. 

For example, Colorado law generally says that all assets and debt you accrue during your marriage are marital, or shared, whether those assets and debt are titled or held in your name only or both of your names together.  

Now there are some big exceptions that I’m not going to list here, but the big picture is that all assets and debt are generally marital, especially if you’ve been married for a long time.  

So let’s take John and Jackie. John has incurred tens of thousands of dollars in debt from directly investing money on an app. And Jackie has no idea. She doesn’t even know that John has been making direct investments on an app. She thinks they’re both putting their money into their respective 401(k)s and brokerages. But John made a big investment that didn’t work out and had to take out a loan to cover the loss. Jackie didn’t sign for the loan and her name isn’t even on it, but, if she and John get divorced, she could have to pay part of that loan simply because she was married to John when he took it out. 

Most people I know think that is a very unfair and shocking outcome. Because Jackie didn’t even have any notice that John took out the loan.  

Similarly, a lot of folks don’t think that it’s fair that something that is titled in one partner’s name only is marital simply by virtue of them being married.  

Because often that act of titling is an intentional one. A lot of people would prefer the default to be separate so that things they title in one person’s name only belong to that person and for things that are titled together to be joint. That requires couples to be more mindful about creating shared property and debt and to maintain more balance in their relationship. There are very valid arguments on both sides and I’m not saying that approach works for everyone. But a lot of couples choose to make a prenup to change the rules of their divorce in a way that seems fairer to them.