The answer is usually no, but in some circumstances could be yes. Many people come to us asking if you need a lawyer for a prenup to be considered valid and enforceable. State law controls this answer, so what is required in California may not be the same requirements in New York. In some states, having a lawyer can work in your favor if your prenup is ever challenged in court, although it’s not really a requirement. Let’s dig deeper into this topic below.
Lawyers are not necessarily required for a valid prenup
To put it simply, whether or not you need a lawyer for your prenup depends on both the state laws and your goals with the prenup. The laws surrounding prenuptial agreements, which fall under family law, are dictated by the state legislature through statutes and case law. Many states base their prenup laws on the Uniform Premarital Agreement Act (UPAA), but each state may modify or adapt the act differently.
While some states don’t require lawyers in order to create a valid prenup, others may require them under certain circumstances or when specific clauses are included. Additionally, some states only require the opportunity to hire a lawyer, while others take attorney representation into account if the prenup is contested in a litigated divorce case.
We do want to make it clear, though: there are some circumstances that will require a lawyer, even though lawyers are usually NOT required. For example, in California, a lawyer is usually NOT necessary unless spousal support is altered in the prenup or if a waiver of attorney is not included. Overall, the need for a lawyer in creating a prenup depends on the specific state laws and circumstances involved.
Both of you cannot use the same lawyer
A question we get all the time is, “Can we both use the same lawyer for our prenup if we agree on everything?” The answer is no! That would be unethical for any lawyer to do. Why? Because when you sign a prenup, the parties to the agreement are each waiving rights to each other’s “stuff.” One lawyer cannot advocate for one side to waive the rights and simultaneously advocate on the other side of the fence for the same thing. In other words, it would be like the lawyer trying to play tennis with just himself. He couldn’t possibly hit the ball efficiently on both sides of the net. You see what we mean?
The same applies to two lawyers at the same law firm. You and your partner cannot hire two lawyers from the same law firm.
Can just one spouse have a lawyer?
If you fall into one of those small exceptions that require a lawyer for a prenup, then you likely will both need attorneys. However, if you are not part of those exceptions, then one person may have a lawyer while the other does not.
CAUTION: This can be “dangerous” because if the prenup is ever contested, the person without the attorney may be able to argue the prenup is unfair because they didn’t have a lawyer. It doesn’t always work, but in some states and in some situations, one person not having a lawyer (plus other factors) may be enough to get the prenup thrown out.
The bottom line: Generally, yes, one person can have a lawyer and not the other, but it’s not advisable. In fact, many lawyers will not work with a couple if only one person is hiring an attorney.
Ways to engage with a lawyer for a prenup
If you do choose to hire a lawyer for your prenup, there are three main ways to engage with a lawyer to do so: attorney advice, prenup document review, and/or attorney representation.
This option is basically speaking with a lawyer and having them answer legal questions or concerns that you may have regarding your specific situation. This option may be a good option for you if:
- You’re not sure if you even need a prenup
- You’re not sure what clauses to put in your prenup
- You have questions about what happens in a divorce if you don’t have a prenup
- You’re not sure how a certain clause works (e.g., how does a death clause work?)
Prenup document review
This is a commonly used option for HelloPrenup users that want a lawyer to take a look at their HelloPrenup prenup. The lawyer, in this case, would review the draft of your prenup, give you advice based on your specific situation, and make edits to the contract if necessary (custom clauses, tweaks, deletions). This option is useful if:
- You want a gut-check on the contract (you want to ensure it’s comprehensive and has all the correct legalities)
- You want to make sure the contract meets your specific needs
- You want a very custom clause that is offered by HelloPrenup
Attorney representation (a.k.a. attorney signature)
Hiring an attorney for full representation (also called “with attorney signature”) is the most expensive and comprehensive option. Some states, in certain circumstances, may require full legal representation in order for the prenup to be valid, such as in California, if altering spousal support. Full representation includes the attorney reviewing your contract, providing legal advice, answering legal questions you may have, making changes to the contract, and negotiating with your partner. Full representation can be beneficial if:
- You need an attorney to negotiate the prenup
- You have a lot of money and complicated assets, which may benefit from having an attorney negotiate the terms of your prenup, create custom terms, or prepare specific documentation.
- Your prenup is challenged in the future. Some courts will look at whether or not each spouse was represented by a lawyer when determining if the prenup is enforceable.
- If you’re in California and attorney representation is required for waiver of spousal support.
Can I write my own prenup?
Technically, most states will enforce a “homemade” prenup. However, it is definitely at a higher risk of being thrown out because the person who wrote it wasn’t aware of all the legal requirements and formalities that go into making a prenup. In other words, going the “DIY” prenup route isn’t the safest bet. Using a lawyer or a state-compliant online platform, such as HelloPrenup, is your best bet for creating an enforceable prenup.
The Bottom Line
The bottom line? Remember that most people in most states will not need a lawyer. However, there are some states and some situations that do require a lawyer, so that is why it is important to brush up on your state laws, consult with a lawyer in your area, and/or use a state-compliant platform like HelloPrenup to make sure you are hiring a lawyer if it’s necessary.
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: [email protected]