Are lawyers required for a valid and enforceable prenup? Can you and your partner share a lawyer? Can one of you waive your right to a lawyer but the other one have a lawyer? There are so many questions to cover and so little time! Stick around to learn about all things legal representation and prenuptial agreements, and most importantly: do both parties need a prenup lawyer? You’ll walk away from this article with all of the knowledge you need to comfortably move forward with the prenup process. Let’s dive in!
Are lawyers required for a prenup?
First and foremost… do you even need a lawyer for a valid and enforceable prenup agreement? The answer depends on which state you’re in. Although virtually all states agree that a lawyer is not a prerequisite to a valid and enforceable agreement, there are some states and some scenarios where obtaining legal representation becomes mandatory.
For example, the baseline rule in California is that you may waive your right to an attorney in your prenup. HOWEVER–the rule becomes you DO need an attorney if you alter spousal support in your agreement. That means if you leave spousal support up to the courts to decide, then you don’t need an attorney and you may waive your right to one in your agreement.
Do both parties need a prenup lawyer?
Technically, you can have one party with an attorney and another party without one. There’s generally no requirement that if one person has an attorney, you both need one. However, some attorneys may refuse to work with a client who’s fiancé isn’t also represented by an attorney because it can present challenges. For example, there are certain rules around the communication between a lawyer and an unrepresented person (see ABA Model Rule 4.2). It can also just generally be a taxing process to work on a contract with someone who isn’t legally trained. They may take longer or not be clear on how the process works.
The long and the short of it is, both parties do not need a lawyer, in most cases. However, there may be a situation where lawyer(s) become mandatory, such as when waiving or altering spousal support in a prenup in California. (See Cal. Fam. Code Section 1612). But outside of any of these types of exceptions, one party may usually waive their right to an attorney while the other party is represented. Again, many attorneys may refuse to work in this type of situation based on the potential challenges they may face in working opposite of an unrepresented person.
Can a couple share a lawyer when getting a prenup?
Many people wonder if they can share an attorney. They’re a couple, after all, they share everything! Unfortunately, this is one of those things where sharing isn’t allowed. Legally, an attorney can only represent one party to a prenup, so, no, a couple cannot share a lawyer. Lawyers cannot represent more than one party to a prenuptial agreement. This is because lawyers are legally required to provide “zeal in advocacy” for their clients (see ABA Model Rule 1.3).
Why? Well, it’s downright impossible to “zealously advocate” for two parties to the same contract. For example, let’s say Spouse A wants to waive alimony and Spouse B wants to keep alimony. Who should the attorney advocate for if he or she is representing both? The attorney would have to choose one person over the other, and this is simply not ethical.
Why do some people say you need a lawyer for a prenup?
You may be confused right about now. You may have heard from a friend, a blog article, or an attorney that you do need a lawyer to get a prenup. And this might be true in some instances, such as the California exception. However, in most states and situations, a lawyer is not required. Why some people say you need an attorney for a prenup is because if your spouse ever challenges the validity of your prenup in a divorce, many courts will look at whether or not you had an attorney as one factor in determining if your prenup is valid. However, this doesn’t mean you need one, it simply means it will be something a court considers when taking a holistic look at the circumstances of your prenup to determine if it should be enforced. Keep in mind, challenging a prenup isn’t super popular because it is quite difficult– it’s time-consuming and expensive.
In addition, some courts will also consider whether or not you had the mere opportunity to hire a lawyer (but you can still choose not to have one). In other words, did you have the time, money, and resources to get your own attorney, but just decided against it? Or were you pressured into signing the prenup without a lawyer because you didn’t have enough time, money, etc. For example, Minnesota follows this rule of having the opportunity to get a lawyer. The MN law states, “A man and woman of legal age may enter into an antenuptial contract or settlement prior to solemnization of marriage which shall be valid and enforceable if (a) there is a full and fair disclosure of the earnings and property of each party, and (b) the parties have had an opportunity to consult with legal counsel of their own choice.” (Minn. Stat. Ann. § 519.11(1),(6)).
Furthermore, you may have heard from an attorney that you need a lawyer for a prenup because it’s difficult to create an enforceable prenup without legal assistance. For example, are you privy to all of the necessary formalities that go into a valid agreement, such as witnesses, notarization, etc.? What about the contents of an agreement? Some people just say that you “need an attorney” because it’s quite difficult to make a prenup without any legal training.
Most states don’t require dual legal representation as a prerequisite to a valid and enforceable prenup
The bottom line is, despite what you may have heard, most states actually don’t require a lawyer to sign off on a prenup in order for it to be valid and enforceable. There are situations where lawyers become mandatory, such as in California, if spousal support is altered in the prenup. But outside of any exceptions, the baseline rule is that you can do a prenup on your own! The risk, of course, is that you may fall victim to some of the legal pitfalls that lawyers are typically able to help you avoid. And if one of you chooses to get a lawyer and the other one doesn’t, that’s usually okay, too (unless the attorney doesn’t feel comfortable with this arrangement).
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]