It’s a great question! Do you need a lawyer to create a valid prenup? The answer is it depends on your state laws (we’ll dig into this more below). The good news? The majority of states do not require legal representation for a prenup to be valid. But that does not mean an attorney is off the table, and in fact, attorneys can be super helpful throughout the prenup process. Keep reading to learn more about what role lawyers play in the prenup-making process.
Do I need a lawyer for my prenup?
Let’s cut to the chase–whether or not you need a lawyer for your prenup partially depends on your state’s law and what you want to achieve with your prenup. Some states do not require a lawyer to represent each party to create a valid prenup. Other states only require a lawyer under certain circumstances and when including certain clauses when creating the prenup. And some states only require that you have the mere opportunity to hire a lawyer. There are even states that, when a prenup is contested in a litigated divorce case, simply take whether each party had attorney representation as a factor in considering whether the prenup should be enforced. It really all depends on the state!
So, let’s dive into an overview of the laws. Family law, which includes prenuptial agreements, is dictated by the state legislature. The state prenup laws are governed by statutes or case law, or both. Many state statutes surrounding prenuptial agreements are modeled after the Uniform Premarital Agreement Act (UPAA). The purpose of the UPAA is to attempt to create consistency from state to state with what is required to create a valid prenup.
Each state’s legislature has decided whether or not to adopt the uniform act, such as the UPAA, and may even make modifications that will apply to their version of it. There are about 28 states (plus D.C.) that have adopted some version of the UPAA.
Case law also dictates the prenup laws of a state. Think of case law as a way to fill in the holes that exist when state statutes are applied. For example, there may be ambiguity in a state statute regarding prenups, but the case law will clear up the ambiguity by setting a precedent.
So, what do the states say about whether or not you need a lawyer to get a prenup? There are still states that might require a lawyer for certain circumstances regarding the prenup, depending on what is being contracted to, or in other words, what rights are being contracted away from either spouse. For example, in California, you don’t need a lawyer for a valid prenup, but if you alter spousal support in that prenup, or don’t include a waiver of attorney, then you absolutely do need a lawyer.
Do I need a lawyer in New York and California?
In California, you do not need a lawyer to create a valid prenup in and of itself. BUT- you do need a lawyer if you alter spousal support in any way. For example, let’s say you both decide spousal support isn’t for you. You both agree to waive spousal support in the prenup. In this case, you both need to hire an attorney to represent you at the time the agreement is signed. If you don’t get an attorney in that situation, you risk invalidating the agreement and the court throwing out your spousal support clause. Separately, even if you do not modify CA spousal support, if you choose not to obtain an attorney to represent you, you must have a waiver of attorney paragraph present in your agreement. HelloPrenup offers this!
In New York, you also do not need a lawyer to create a valid prenup. However, having independent counsel is merely one factor that a court will consider in determining the enforceability of a contract. In other words, the fact that a party doesn’t have an attorney alone is not enough to invalidate a prenup, but it may help support a claim that the prenup is valid.
Many states require the OPPORTUNITY to hire a lawyer
This rule does not require a lawyer. It merely requires the opportunity to hire a lawyer before executing the contract. This can mean that a spouse has both the funds to hire an attorney and the time to find one, get advice, and consider that advice. The typical scenario that this occurs is when the prenup is presented to the other party. Did one spouse provide the prenup while walking up to the altar? Or did they give them a reasonable amount of time to look at the terms of the prenup? The timing plays a big part in whether or not a party to a prenuptial agreement has an opportunity to get a lawyer.
In Massachusetts, a lawyer is not required for a valid prenup. If the prenup is contested, the court will look at a variety of factors to determine whether or not the prenup was fair and reasonable. Those factors include:
- The availability of legal counsel,
- Both spouses have a sufficient amount of time to review the agreement,
- Both spouses have an understanding of the agreement terms, and
- Both spouses’ understanding of their rights if there is no agreement.
Massachusetts also employs a two-factor test when deciding whether to enforce a contested prenuptial agreement. Part 1 includes whether or not the agreement was fair and reasonable at the time it was signed, and part 2 includes whether it was fair and reasonable at the time it was executed.
As you can see, the availability of finding an attorney is one factor that points toward a fair and reasonable prenup. One way to show this would be to include a written waiver of independent counsel on the prenup itself. This demonstrates that the party choosing not to have an attorney had the opportunity to hire a lawyer but chose not to.
Let’s look at an Ohio case (Fletcher v. Fletcher, 68 Ohio St.3d 464 (1994)) where the court considered whether or not a couple had enough opportunity to hire a lawyer (but ultimately did not hire one). Spoiler alert: the prenup was still valid even though the wife did not have an attorney.
The happy couple was married on April 29, 1983. One day before the wedding, the spouses entered a prenup. The prenup had an unequal division of property, and the wife would receive much less under the prenup than she would under state divorce law. They were married for seven years before husband filed for divorce and tried to enforce the prenup. Wife argued that the prenup was invalid and tried to have it thrown out. The result? The court sided with the husband. Even though the prenup was executed a day before the wedding and resulted in an unequal distribution of property, it was still a valid contract. One of the reasons the court cited was that she had plenty of opportunity to consult with an attorney, but she refused. The wedding was small and informal, which made it much more reasonable for her to postpone the wedding to get legal advice. The court makes note that this is not always the case. Many times, if you present a prenup the day before a wedding, it will not give the other party a “meaningful opportunity” to seek out an attorney. This was a unique case based on the wedding type.
A Pennsylvania couple, a 23-year-old nurse and a 39-year-old neurosurgeon were set to wed. Husband’s attorney presented the wife with the prenup the night before the wedding, but they had discussed the contents of the agreement six months prior. Wife did not have an attorney but signed it anyway. The agreement limited spousal support (a.k.a. alimony) to $200 per week, with a maximum payout of $25,000. During the separation, the payments were made to the maximum amount. Wife asked the court for more, claiming (among other things) that the prenup was invalid because she didn’t have attorney advice.
What do you think the results were? Did she have a meaningful opportunity to hire an attorney? The court thought, yes! The court explained that you don’t need to hire an attorney in Pennsylvania to get a prenup, and she had plenty of time to get one if she wanted one. She had almost six months to do so! Simeone v. Simeone, 525 Pa. 392 (1990).
Do we both need an attorney?
Unfortunately, you cannot hire one attorney to represent both of you. That is why you may see the phrase “independent legal advice” or “independent representation” because it means each party must have their own independent attorney representing them. Why? Because it is a conflict of interest for one attorney to represent two parties to the same contract. One attorney cannot effectively advocate for both people at the same time since they have competing interests.
What about if one of you has an attorney, but the other doesn’t? Depending on your state, having two attorneys is not necessarily required. However, if one party has an attorney and the other party does not, then it may raise cause for concern for a divorce judge in determining if the prenup was validly executed. But not always. As you read in many of the cases above, if the party without an attorney had a reasonable chance to hire an attorney, then the court is more likely to deem this acceptable.
In some states, like California, if one party has an attorney, but the other does not, you must sign a written waiver acknowledging that you are waiving your right to independent legal advice.
Using HelloPrenup and an attorney
HelloPrenup offers an interactive platform that guides you and your partner through the process of creating a prenuptial agreement. You each create your own separate accounts (but you only pay $599 collectively). Once your account is created, you will then fill out a questionnaire that helps tailor your prenup to your specific needs. Then, you will fill out a financial schedule for the financial disclosure step. Next, you will be brought to a negotiation stage where you can work out any discrepancies there may be between you and your partner. Once you compromise and agree on the terms, all that is left is to sign, notarize, and download it. Bam! You have yourself a pretty little prenup.
Now, what some folks choose to do, but it’s not necessarily required in every state, is take that freshly inked prenup to an attorney to review it before finalizing. In fact, if you have legal questions or concerns or want representation, then we highly encourage you to consider calling a licensed attorney in your state. Using both HelloPrenup and an attorney will still save you money on the billable hours it would’ve taken an attorney to draft up the agreement. For example, if you have legal questions about the prenup, it may be a good idea to speak with an attorney.
Pros and Cons of using HelloPrenup.com
Pros of using HelloPrenup.com:
- Convenient: HelloPrenup.com provides a convenient and simple way to draft a prenuptial agreement without the need to consult a lawyer. –
- Affordable: The cost of using HelloPrenup.com is much lower than hiring a lawyer to draft a prenup.
- Customizable: HelloPrenup.com provides customizable templates that can be tailored to meet the specific needs of the couple.
- Secure: HelloPrenup.com provides a secure online platform for couples to draft their prenup.
Cons of hiring a lawyer:
- Expensive: Hiring a lawyer to draft a prenup is significantly more expensive than using an online platform like HelloPrenup.com.
- Time-consuming: It can take several weeks or even months for a lawyer to draft a prenup, whereas with HelloPrenup.com, the process can be completed in a matter of days or even hours.
- Rigid: A lawyer‘s prenup is likely to be very rigid and may not include any of the couple‘s personal preferences. HelloPrenup.com, on the other hand, allows couples to customize their prenup to fit their individual needs.
Overall, the pros of using HelloPrenup.com far outweigh the cons of hiring a lawyer. It is a convenient, affordable, and secure way to draft a prenuptial agreement that can be tailored to meet the individual needs of the couple.
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]