In re Marriage of Ikeler

In In re Marriage of Ikeler, 161 P.3d 663 (Colo. 2007), the Colorado Supreme Court considered the enforceability of a fee-shifting bar in a marital agreement. The court noted that a fee-shifting bar could harm the children by "substantially impair ing " "the lesser-earning spouse's ability to effectively litigate the issues related to the children," which would, "in turn negatively impact the court's ability to assess the best interests of the children" (Ikeler, 161 P.3d at 670-71), and it stated that a fee-shifting bar would violate public policy "where one spouse lacks the financial resources to litigate the dissolution, and the case involves issues of parental responsibilities and child support" (Ikeler, 161 P.3d at 667). Thus, Colorado follows the rule implied in Kessler: a fee-shifting bar is unenforceable where the spouse prosecuting the child's interests demonstrates an inability to pay.