You’ve found the love of your life AND you are lucky enough to live in one of the most beautiful areas of the country?! Life is good. Whether you’ll be by white-sand beaches, lush green forests, or old majestic mountains, your Alabama wedding day will be as beautiful as it is exciting.
You are already working hard to make smart choices as you plan your wedding, and if you are reading this, you are being just as smart to plan for your financial future. Prenuptial agreements no longer have the bad reputation they had for your parents’ generation. These days we know they are a powerful tool to help couples get on the same page from the very start, by discussing one of the biggest subjects in a marriage—finances. Thinking ahead and setting expectations now builds powerful trust and collaborative skills that will prevent headaches, confusion, and financial stress in the future.
But do I need to hire an attorney to draft my prenup? What are the requirements for a valid prenup in Alabama?
Keep reading to find the answers to your questions and to learn more about prenups!
Is a lawyer required for a valid prenuptial agreement in Alabama?
No, but you should think carefully before skipping an attorney all together.
In Alabama, you are not required to hire an attorney for a valid and enforceable prenuptial agreement as long as a later court decides that the agreement is fair. If this sounds risky, it’s because it is. Getting a prenup without a lawyer in Alabama is a risk because the courts there will apply a test that asks if (a) the agreement is fair, and, if it’s not fair, (b) did the person facing unfairness have a lawyer and full knowledge of the estate’s value? (Hollar v. Hollar (2023)).
The absence of an attorney does not automatically invalidate a prenup as long as the agreement is fair and the parties entered the agreement voluntarily with full knowledge of their partner’s financial assets and obligations (Nelson v. Estate of Nelson (2010)). But when a divorcing couple is debating whether a prenup is valid, whether they each had legal representation, is one of the factors a judge will consider. Independent legal advice at the outset shows that each party had an objective third-party professional walk them through the legal consequences of the agreement. This goes a long way to indicate fairness and can help prove that each party signed the agreement voluntarily with a clear and thorough understanding of the financial ramifications (Ayers v. Ayers (2022)).
Do we both need a lawyer, or can we just hire one for one person?
Like we discussed above, the law does not require you to hire an attorney, but if someone down the road argues that your prenup is unfair, the fact that one of you did not have independent legal counsel could support their argument and leave you with an invalid prenup . Similarly, if one of you wants a lawyer, but the other doesn’t, there’s nothing in Alabama law specifically prohibiting that. It is completely up to you and your partner. However, if a judge is later evaluating your prenup’s fairness and enforceability, whether both of you had the opportunity to consult an attorney before signing will be an important factor. Therefore,when you present a prenuptial agreement to your partner, it is critical that there is enough time before the wedding for both of you to consult a lawyer (Williams v. Williams (2014)).
Let’s look at an example to help demonstrate this principle: Say you’re getting married in a few days. You’re hosting events and welcoming guests for the wedding week extravaganza, when your uncle pulls you aside for chat. He’s an attorney, and his unsolicited and insistent advice is that you and your fiancée should sign a prenup before you say, “I do.” This understandably sends you into a bit of a panic, but he assures you that a prenup won’t take long. The day before the wedding, you anxiously present a quickly drafted prenup agreement to your love. She’s as caught off guard as you were, but it goes fairly well. The only problem is that she doesn’t have enough time to consult an attorney of her own. Your family and friends have traveled from all over; the vendors have been paid; and the big day is tomorrow. She ends up signing the agreement without a lawyer.
Fast forward twenty years to a world in which the two of you have decided to dissolve the marriage (i.e. divorce). A court would probably look back on the circumstances surrounding the signing of the agreement and see that your fiancée did not have enough time to consult an attorney who could have explained the consequences to her before signing. That court may question whether the agreement is reasonable by considering its terms in light of her lack of counsel. This lack of opportunity could invalidate the entire agreement, and the courts would then distribute your property according to state law as if your prenup never existed.
Can we share a lawyer?
Sorry, but no. As you move towards sharing more and more of your lives together, it may seem like a good idea to share one attorney, but it just isn’t allowed.
Attorneys have a strict duty to prioritize the individual needs and interests of their clients. By representing both of you, a lawyer would be in what’s called a conflict of interest. You and your partner are on the same team in life, but when it comes to your prenup, your lawyer’s job is to protect you by approaching the process as if you are on opposite sides. Your lawyer would not be able to objectively represent your financial interests and personal goals if they were also trying to achieve the financial interests and goals of your partner.
You will be hard pressed to find an attorney who would agree to represent you both, and if someone does? Yikes! Find a different lawyer! The conflict of interest could be a breach of the lawyer’s ethical duties and would probably invalidate your prenup.
Can I write my own prenuptial agreement?
Alabama does not prohibit you from drafting your own premarital agreement. If your prenup meets the enforceability requirements, including being reasonable, in writing, and signed voluntarily, it might hold up in court. But, writing your own prenup is not recommended!
Alabama takes their requirements for a valid prenup very seriously. The nuances of the law and the legal terms throughout a prenup would best be navigated by an attorney experienced in prenuptial agreements or through using a well-respected online prenup platform like HelloPrenup. The desire to minimize expenses during wedding planning is understandable. It adds up so quickly—the venue, the food, the flowers… the dress! But DIY’ing your prenup is not where you should cut corners. There are great affordable options, such as HelloPrenup, that give you a personalized,state-compliant prenup for a flat rate. And will connect you and your fiancee with affordable, flat rate Alabama attorney services as well.
What are the legal requirements for a valid prenup in Alabama?
Alabama generally upholds prenuptial agreements if they meet the following criteria:
- The agreement must be in writing;
- The agreement must be signed voluntarily before the wedding;
- The agreement must include full disclosure of both parties’ financial assets and obligations;
- The parties must have had the opportunity to consult with independent legal counsel;
- The terms must not be unconscionable at the time of enforcement (Brown v. Brown (2009)); and
- If the party seeking to enforce the prenup does not show that it was fair and reasonable from the other party’s point of view, then the enforcing party must prove that the other party voluntarily entered the agreement with competent independent legal advice and full knowledge of the estate’s value (Hollar v. Hollar (2023)).
The requirement that a prenup not be unconscionable at the time of divorce means that if a judge finds that a prenup is so one-sided that it would be unfair to enforce it, the court could choose to throw it out completely (Brown v. Brown (2009)). In a case challenging a prenup, the person who is trying to enforce the prenup is the one who has to prove its validity (Tibbs v. Anderson (1991)).
These requirements for a valid Alabama prenup come from case law rather than statute, and these cases have established the critical qualities Alabama courts look for when deciding whether a prenup will be upheld and followed.
How much does a prenup lawyer cost in Alabama?
As everybody knows, lawyers aren’t cheap! But there’s a reason we need them. If you someday end up in court, having worked with experienced attorneys can make the difference between your prenup being enforced or being thrown out.
But how much do they cost?
According to a HelloPrenup survey of family law attorneys across the country, the national average for a prenup for both parties is approximately $8,000. Yikes! Like we said at the beginning of this paragraph, lawyers aren’t cheap! Luckily, with online services, such as HelloPrenup, you can get a valid Alabama prenup for a fraction of the cost—-just $599.
What’s the bottom line on prenup lawyers in Alabama?
TL/DR? Here are the basics.
Alabama does not require that you or your fiancé work with an attorney in order for your prenup to be valid and enforceable, as it is deemed fair and reasonable, (Nelson v. Nelson (2010)). But whether or not you worked with an attorney is one of the factors courts consider when determining the validity of an agreement or the voluntariness of the parties’ signatures. So, even though it’s not required, it is recommended that you and your fiancé each have independent legal counsel to ensure the prenup follows state law and to explain the full financial and legal consequences of signing.
If attorneys are not hired, it is important that you both at least have a reasonable amount of time to have considered consulting with an attorney. (Williams v. Williams (2014)).
Phew! Give yourself a pat on the back.
If you’ve gotten this far, you’ve learned a lot in the past few minutes. You are ready to go make informed, responsible decisions about your prenuptial agreement and your financial future.
Once your prenup is done, whether you are counting falling stars in Huntsville or watching the waves on the Gulf Coast, it’s time for you and your partner to get back to basking in the lives you are creating, right here in “Sweet Home” Alabama!
Sarah Rutledge Fischer is an attorney licensed in California and Alabama, and owner of the mediation firm, Thresholds LLC. Located in lower Alabama, but serving clients virtually in both states, Fischer has focused her practice on serving those who desire a more human option than most traditional legal practices currently offer.
On the front end, she loves the opportunity to support people through the Prenuptial Agreement process that can help them make decisions fully in line with their values and aspirations. Once relationships are legally established, Fischer’s passion is helping people navigate the conflict and transition inevitable in all relationships through the affordable and empowering practice of facilitative mediation.
As a woman and a member of the LGBTQ+ community, Fischer understands that many people do not feel empowered or treated well in a courtroom or traditional law office. It is her mission to provide a place where each person can feel supported in their humanity, dignity, and autonomy as they work to move through the threshold of their conflict or transition to what is on the other side.
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