You’ve picked the venue and the flowers… now it’s time to start the prenuptial agreement. Getting a prenup is a smart way to protect individual financial interests, but also to get on the same page as your partner before the wedding. You’ll discuss hard topics like debt, joint accounts, death, retirement, and everything in between. But do you need a lawyer to assist you in the prenup process in Massachusetts? Can just one person hire a lawyer? What about sharing a lawyer? We answer all of these questions and more. Let’s dive in.
Is a lawyer required for a valid prenup in Massachusetts?
No, a lawyer is not a requirement for a valid prenup in Massachusetts. However, the presence or absence of a lawyer may be considered when evaluating the validity of an agreement in divorce if the prenup is ever contested. For example, in the landmark prenup case Dematteo v. Dematteo (2002), the court emphasized that, while not required, the fact that both parties had representation helped establish that there was no duress, she had an opportunity to understand the terms, she had an understanding of his finances, etc. So, as you can see, while not required in Massachusetts, hiring a lawyer can help with the enforceability should the prenup ever be challenged down the road. Think of it as a wise investment in peace of mind.
Can only one person hire a lawyer for a prenup in Massachusetts?
Yes, it is possible for a prenup in Massachusetts to hold up in court even if only one party hired a lawyer. However, this is not ideal, and it can increase the risk that the agreement will be challenged later on. Massachusetts courts place a strong emphasis on fairness and informed consent. If only one person is represented by an attorney, the other party must be given a meaningful opportunity to seek independent legal counsel—which includes sufficient time to find a lawyer and properly review the terms before signing.
While it’s legally possible for just one party to have a lawyer, best practice is for both parties to retain separate counsel. Not only does this help ensure that the agreement is truly voluntary and fully understood, but it also strengthens its enforceability if contested in the future. In fact, some attorneys will not even draft or finalize a prenup unless both individuals have legal representation, to avoid claims of unfairness or undue influence down the line.
Bottom line: If you want your prenup to hold up in court, it’s strongly recommended that both parties have their own lawyers.
Can we share a lawyer?
No. Two parties to a prenuptial agreement in Massachusetts cannot share one lawyer. A lawyer has a duty to zealously advocate for their client, and it is difficult to do that when both parties have opposing interests. And let’s face it: in the context of a prenup, the interests of each party are inherently different. For example, one person may want to waive spousal support or an elective share, while the other may want to preserve those rights. In such cases, a single lawyer cannot fairly advise both people without creating a conflict of interest. Doing so would compromise the legal and ethical obligations that attorneys owe to their clients. This is why it’s critical for both parties to hire an attorney or for the attorney only to advise one party.
Can we write our own prenup in Massachusetts and have it notarized?
Yes, it is possible for you to write your own prenup in Massachusetts, have it notarized, and ultimately hold up in court. Writing your own prenuptial agreement without a lawyer can be risky, though, because a non-lawyer may not understand how to draft unambiguous contract language. In addition, non-lawyers may not understand what options are available and the impact of including certain clauses. However, this isn’t to say that it’s not possible. And if you want to get your self-written prenuptial agreement notarized, you can do so. Adding notarization is a way to layer on some protection to your agreement by providing third-party confirmation that both parties signed voluntarily and understood what they were signing at the time.
The legal requirements for a valid prenup in Massachusetts
So if you’re considering writing your own prenuptial agreement, you’ll still need to comply with all of the state laws. In Massachusetts, here’s what’s required for a valid and enforceable agreement:
- It must be in writing and signed by both spouses. Verbal agreements don’t count.
- Each party must provide full financial disclosure of all assets, income, debt, and any known future inheritance.
- The spouses must both enter into the agreement voluntarily, free from fraud, duress, coercion, pressure, etc.
- The agreement must not be unconscionable (i.e., grossly unfair)
- The terms must not violate public policy (i.e., no child custody or child support clauses)
Some of the above requirements can be difficult to do without an attorney, but not impossible. Self-written prenups must still comply with all of these rules!
The bottom line on the lawyer requirement in Massachusetts
The big takeaway here is that a lawyer is not required for a valid prenuptial agreement in Massachusetts. However, it can be beneficial to hire one anyway to help boost enforceability odds. In addition, hiring one lawyer may be okay, but the best practice is to always hire two. And steer clear from sharing one attorney—this is a definite no-go in Massachusetts. Remember, prenups are marital tools meant to facilitate communication, trust, and also protect financial security. Here’s to a lifetime of happiness and financial freedom!
Katherine (Kathy) Bakes is the founder and managing attorney of Bakes Law LLC. Her eleven years of practice involves all aspects of family law, including the formation of prenuptial and postnuptial agreements, divorce and legal separations, child custody, child support, and visitation agreements, spousal support and financial settlements. Kathy also engages in the practice of estate planning including the formation of wills, revocable and irrevocable trusts, durable powers of attorney, health care proxies, HIPAA authorizations and living wills. Kathy is a member of both the Connecticut and Massachusetts state bars after receiving her Juris Doctorate degree from New England Law | Boston. Kathy lives in Southport, CT with her husband and toddler. Outside the office, Kathy enjoys playing the piano and teaches music education to students of all ages.
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