Thinking about getting a postnup? You might be wondering if you need a lawyer. It’s a good question! Regardless of whether or not it’s required in your state, having a lawyer can make a HUGE difference in the enforceability of your agreement.
When couples dispute over a postnup in a divorce, judges often look closely at how it was created. They want to make sure everything was fair. If you had a lawyer, it shows you were informed and understood what you were signing. Postnups are trickier than prenups, legally speaking. So having a lawyer on your side can really help if you ever need to rely on your agreement down the road.
Let’s dive into more details on whether or not you need a lawyer for a postnup (spoiler alert: It’s highly recommended).
It depends on your state
The long and the short of it is that state law dictates the law on postnups, so whether or not you need a lawyer depends on your state. For example, in Minnesota, they explicitly require attorney representation for a postnup by statute (Minn. Stat. § 519.11). On the other hand, a New York court has held that the absence of legal representation for one party did not invalidate the postnup since the person had waived their opportunity to obtain an attorney (Hershkowitz v. Levy, 190 A.D.3d 835 (2021)).
Some states require a reasonable opportunity to obtain counsel
While many states don’t explicitly require the need for an attorney to sign off on your postnup, they often do require that each party had a reasonable opportunity to hire an attorney. For example, the Supreme Court of Connecticut emphasized that in evaluating the enforceability of a postnuptial agreement, a court should consider whether the parties had a reasonable opportunity to confer with independent counsel (Bedrick v. Bedrick, 300 Conn. 691 (2011)). What does this mean? It means having the time and the funds to hire an attorney. Not being overly pressured to NOT hire one by the other spouse.
Having a lawyer is highly recommended anyway
Even if your state is one of the ones that doesn’t require attorneys, it is heavily recommended to get one anyway. This is because postnups are legally “shakier” than prenups. Postnups generally require stricter scrutiny from a judge, which means your postnup is more likely to get thrown out because a judge will scrutinize it more. Why do judges scrutinize it more heavily? Because (it is argued that) postnups may be created during times of vulnerability in a marriage, which creates a disadvantage for one of the spouses who may feel forced into signing something they’re not comfortable with. Having a lawyer represent each party can help a court see that both parties were advised of their rights and had an advocate on their side to help them decline to sign it if necessary.
Some attorneys won’t work on your case without both spouses having attorneys
Plus, many attorneys will refuse to work on a postnup where their client’s spouse isn’t also represented by an attorney. Why? Because it will be easier to contest when one person isn’t represented and could drag them into court. They want to avoid the liability of working on a postnup that has a high chance of being contested. In addition, there’s an ethical level to it if the attorney feels the unrepresented party isn’t advocating for their rights sufficiently. Now, this isn’t to say all attorneys will do this, but some certainly will. Ultimately, seeking legal guidance is the best way to navigate the complexities of a postnup and ensure your agreement provides the security and peace of mind you seek.
Postnups are complicated
Postnups are similar to prenups, but they are much more complex, legally speaking. Postnups are a newer legal concept and courts and lawyers across the country are not as familiar with them as they are with prenups. The general consensus about postnups in the legal community is that they are less enforceable than prenups. This is because postnups tend to be created during a time in the marriage that may be tumultuous, which can create an agreement that is unfair.
For example, when one spouse is significantly more interested in preserving the marriage than the other, a postnup can become a tool for exploitation. The spouse desperate to avoid separation (maybe for child, financial, or religious reasons) may feel pressured to accept unfair terms, creating an uneven bargaining situation where their vulnerability is leveraged. This imbalance can result in a postnuptial agreement that heavily favors the party holding the dominant position, potentially crossing the line into coercion.
Real-life case analyzing the attorney requirement for a postnup
Let’s take a look at a real case stemming from Illinois that was disputed by a real couple over a postnup where the court analyzed the presence or absence of an attorney.
In In re Marriage of Labuz, 2016 IL App (3d) 140990, the husband claimed that the postnuptial agreement he entered into with his wife should be voided. He argued that he signed the agreement under duress, without legal counsel, and that its terms were unfairly one-sided. As part of their analysis, the court analyzed the presence or absence of an attorney by highlighting that the husband had been represented by counsel in a prior divorce proceeding and was explicitly informed that his wife’s attorney did not represent him and that he should seek independent counsel. Despite these facts, the husband chose to proceed without legal representation–signing multiple versions of the agreement–including a final version, after his wife had filed for divorce. The court found that the husband’s actions demonstrated a clear understanding that he was unrepresented and that his choice to forgo legal advice did not invalidate the agreement.
As you can see, while here the court said the postnup was VALID even without one party having an attorney, it may not always be the case, depending on the circumstances. It’s a very case-by-case analysis, and your safest bet is to hire an attorney to avoid this altogether. Maybe if the husband had had an attorney in the case above, he would’ve been happier with the terms of the agreement to begin with.
The bottom line on whether you need an attorney for a postnup
The takeaway here is clear: while hiring an attorney for your postnuptial agreement might not be legally mandated in your state, it’s a decision you should strongly consider. Think of it as an investment in the future of your agreement. A lawyer can help ensure your postnup is comprehensive, fair, and legally sound, minimizing the potential for challenges down the line.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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