Thinking about getting a prenuptial agreement in the Golden State? Congrats! Prenuptial agreements are useful tools to not only protect financial interests but also promote transparency and trust in the relationship. But before taking the plunge into your prenup journey, you might have some questions…Like, “Do I need to hire a lawyer for a valid prenup?” or… “Can we both share a lawyer?” These are important questions as they pertain to the enforceability of the agreement. Let’s discuss what you need to know about the lawyer requirements for a prenup in California.
Do I need a lawyer for a prenup in California?
It depends. In California, if your prenuptial agreement includes any changes to spousal support, then both parties are legally required to have their own attorneys for the prenup to be valid. If spousal support isn’t addressed, you can each choose to waive your right to legal representation—but that waiver must be in writing, as required by California Family Code § 1615. Meanwhile, § 1612 makes it clear: you cannot waive your right to a lawyer when modifying spousal support—period. The bottom line? If your prenup involves spousal support, lawyers are mandatory. If it doesn’t, you can opt out of legal counsel, as long as it’s properly documented.
You need a lawyer if you waive or alter spousal support in California
According to California Family Code § 1612, if your prenup includes anything about spousal support—like waiving it or limiting the amount—it won’t be enforceable unless the person giving up spousal support had their own lawyer when they signed the agreement. In addition, it’s important to note that even if they did have a lawyer, the spousal support terms still won’t be enforced if they’re found to be unconscionable (i.e., grossly unfair). And just having a lawyer doesn’t automatically make an unfair spousal support provision okay—it still has to be actually fair at the time of divorce.
If you don’t want to hire a lawyer, you need a proper waiver
If you decide that you don’t want to hire a lawyer for your California prenup (and you are not modifying spousal support), then you must execute a proper waiver of legal representation. This isn’t just a verbal agreement or a checkbox. The prenup must clearly state that you’re waiving your right to an attorney, and you’ll also need to sign a separate written waiver confirming that decision. This extra step of executing a waiver helps show the court that you understood your rights and chose to proceed without a lawyer knowingly and voluntarily. This law is all about making sure there is transparency and helping prevent claims of coercion later on. And, don’t worry, if you are getting a California prenup with HelloPrenup and not altering spousal support, we include this legal representation waiver for you!
Can only one person hire a lawyer for a California prenup?
Yes, it is possible for a couple in California to create a valid prenup even though only one party hired a lawyer, as long as spousal support isn’t being waived or modified in the agreement. For example, in In re Marriage of Howell (2011), a California court upheld a prenuptial agreement even though only the husband had an attorney and the wife did not. The court found that the wife voluntarily signed the agreement, had ample time to review it, and was advised to seek legal counsel but chose not to. She was capable of understanding the document, had a background in bookkeeping, and participated in financial disclosures. The court emphasized that the lack of independent counsel alone did not invalidate the prenup, as there was no evidence of duress, fraud, or lack of capacity.
Can we share a lawyer?
No—it is unethical for a lawyer to advise two parties to one prenup in California. This is because a lawyer cannot zealously and adequately advocate for both parties at the same time. Think of it this way: parties to a prenup have opposing interests, and trying to negotiate terms would require the lawyer to take sides. This is unethical, and each party is entitled to their own independent legal advice that benefits them. For example, imagine a scenario where waiving spousal support would benefit the husband but be a detriment to the wife. It would be difficult for the attorney to advocate for both parties at the same time in this scenario.
Can one person pay for the legal fees of the other party?
Yes, it may be acceptable for one fiancé to cover the fees for a prenup for their partner, as long as they aren’t coercing their partner into signing the prenup or forcing them to choose one specific attorney. For example, if one party pays for their partner’s prenup attorney fees, but only pays for it if they choose their best friend as the attorney, then it could be construed as coercion and negate the representation as a whole (and potentially be considered unenforceable). Bottom line? You can pay for your fiancé’s prenup fees as long as they are entering into it voluntarily and have a meaningful choice in their prenup lawyer.
Hiring a lawyer can be beneficial, even though it may not be required for your situation
Even if you’re able to legally waive legal representation in California, you may want to consider hiring an attorney anyway. They can help you navigate the California laws (such as the 7-day rule), they can help craft your agreement to meet your needs, and answer any legal questions you may have. They can also spot potential red flags, negotiate terms on your behalf, and help avoid vague or unenforceable language that could cause issues down the road. This allows you to have peace of mind that not only is your agreement state-compliant, but it is also customized to benefit you.
The takeaway on the legal requirement for lawyers in California prenups
The moral of the story is that prenups in California only require legal representation if they are modifying spousal support. And you can only validly forgo legal representation if there is a proper waiver. Only one person may hire a lawyer, but you cannot share a lawyer. And one person can legally cover the other’s prenup fees as long as there is no coercion involved. Remember, prenuptial agreements are powerful tools for protecting assets and fostering alignment between spouses, and having a lawyer guide you through the process can make it even more effective and stress-free. Happy planning!
Nicole Duncan is a lawyer and founding partner at Duncan Family Law. She earned her Doctor of Law (J.D.) from Whittier Law School and is licensed to practice law in California and Colorado. Nicole has an International Law certification from King’s College London and graduated with a Bachelor of Business Administration degree from USC Marshall School of Business.
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