DISCUSSION FOR QUESTION 6 I. Validity of the Premarital Agreement
To be valid, a premarital agreement must be in writing and signed by both parties, the parties must make full and fair disclosure regarding their assets and liabilities, and the agreement must be entered into voluntarily without duress, fraud, or overreaching. Section 14-2-307(1), C.R.S. 2007. Here, the facts indicate that the agreement was signed, so it was necessarily also written. The facts also indicate that Fred and Martha had independent counsel during the negotiation process, so the examinees can presume that the agreement was voluntary. The examinees should conclude that, assuming the parties made full financial disclosure, the portions of the agreement regarding the division of property are enforceable. See In re Marriage of Ross, 670 P.2d 26 (Colo. App. 1983) However, the Colorado Marital Agreement Act specifically states that a “marital agreement may not adversely affect the right of a child to child support.” Section 14-2-304(3), C.R.S. 2007; In re Marriage of Ikeler, 161 P.3d 663 (Colo. 2007); In re Marriage of Chalat, 112 P.3d 47 (Colo. 2005). Thus, the parties’ agreement that they would bear equal financial responsibility for supporting the children and that neither would be required to pay child support is unenforceable. II. Financial Support of William and Charles A. William Generally, a parent’s child support obligation continues until the child reaches the statutory age of emancipation, which is 19 in Colorado. However, a child who is serving in the military is considered emancipated, even if he or she is under 19 years old. If William returns to the family before age 19, then child support may be owed. §14-10-115(13)(a)(V), C.R.S. 2007. The facts indicate that William is 18, but neither party can be required to pay child support for him during his service in the military. B. Charles The Colorado statute regarding a parent’s obligation to pay for a child’s college education has changed over the years. After 1997, a court cannot order a parent to pay for any college costs unless the parents entered into an agreement after July 1, 1997 that provides otherwise. Sections 14-10-115(13)(a) and (b), C.R.S. 2007. The facts do not indicate that the parties’ agreement addressed the issue of post-secondary education. Because their divorce was final in 2007, the post-1997 statute applies, and neither parent can be required to contribute to Charles’ college expenses. However, because he is 18, and has not yet reached the age of emancipation, either parent can be required to pay child support to the other for Charles.
DISCUSSION FOR QUESTION 6 Page Two III. Pending Motion regarding Child Support for the Baby
The issue of paternity may be raised in conjunction with a determination of child support in a dissolution of marriage proceeding, but the procedures of the Uniform Parenting Act (UPA), §§ 19-4-101, et seq., C.R.S. 2007, must be followed. In re Marriage of De La Cruz, 791 P.2d 1254 (Colo.App. 1990). A man is presumed to be the natural father of a child if he “and the child's natural mother are or have been married to each other and the child is born during the marriage . . . [or] within three hundred days after the marriage is terminated. . . .” Section 19-4105(1)(a), C.R.S. 2007. A presumption of paternity may be rebutted only by clear and convincing evidence. Section 19-4-105(2)(a), C.R.S. 2007. The burden of proof is on the moving party (in this case, Martha) to establish paternity. C.K.A. v. M.S., 695 P.2d 785 (Colo. App. 1984). Once paternity is established through a court order, the court may enter orders concerning child support. Section 19-4-116(3)(a), C.R.S. 2007. Because Martha is seeking child support, she has the burden of proving Fred is the father of the baby. Fred and Martha were married when the baby was conceived, and the baby was born within 300 days after their divorce became final (the facts indicate that the baby was born 3 ½ months after the divorce). Thus, Fred is the presumptive father. But Martha was married to Paul when the baby was born, so he is also presumed to be the father. The presumption of either as the father may be rebutted. When two or more presumptions arise which conflict with each other, “the presumption which on the facts is founded on the weightier considerations of policy and logic controls.” Section 19-4-105(2)(a), C.R.S. 2007. However, in weighing competing presumptions, the best interests of the child standard must also be applied N.A.H. v. S.L.S., 9 P.3d 354 (Colo. 2000). Because two presumptions arise here, one or more of the parties will request a genetic test, and the results of the test will determine who the father is. If Fred is the father, he can be required to pay child support for the baby. If the results of the blood test show the probability of Paul as the father, Fred likely will not be required to pay support.
2/08