While an attorney isn’t generally required to create a valid prenup, it’s not a bad idea to consider consulting one. However, this is one thing you shouldn’t share with your soon-to-be spouse. For a host of reasons, it’s better for you and your fiancé to consult with separate attorneys. Why? Let’s dig deeper below!
Why You Can’t Share a Prenup Attorney
This really all comes down to prenup validity mixed with attorney ethical concerns. If you were to get divorced down the road and ask the judge to enforce your prenup, the judge will first ensure that the prenup is valid and enforceable. To do so, the judge will inquire into the formation of the agreement. Certain things can be red flags for judges. For example, if the agreement is signed 3 hours before the ceremony, the court is going to have questions about whether the agreement was entered voluntarily or was the result of coercion and duress. Likewise, the lack of independent counsel (i.e. a separate attorney) begs the question of whether the parties knew they could hire or consult with independent counsel.
So why is it such a red flag? Well, when obtaining an attorney to consult with you on such an important matter, you want the attorney to give you an open and honest analysis as to whether signing the agreement would be in your best interest. It’s kind of hard for an attorney to do that with two parties whose interests are at least somewhat in opposition This is precisely why legal ethical guardrails are in place to prevent attorneys from representing both parties to an action.
Why it’s Helpful to have Separate Attorneys
So, with that being said, let’s talk about all the great things that a separate attorney can do for you. First, advice! Legal advice on a prenup can be especially helpful if you have complex assets or are confused about what would happen under your state’s divorce laws. Having an attorney go through your agreement can be especially helpful and ease some of the discomfort.
Next, while having a separate attorney bodes well for the validity of your prenup down the road, a separate attorney can also evaluate your prenup for other concerns with respect to choices in your draft. For example, as an active participant in the execution of the agreement, your attorney can look out for potential issues around alimony or asset planning.
Another factor to consider is that all of your conversations with your separate attorney are completely confidential. That can make it much easier to ask every question on your mind without fear of rocking the marital boat. Fully understanding the agreement – as well as what rights you are giving up – is extremely important. If it is apparent that you or your fiancé did not fully understand the consequences of entering into the agreement, a court may invalidate your prenup. Not what you want in the midst of divorce! So, its very important that you feel free to ask your attorney anything and everything related to your prenup.
State Requirements
While having an attorney actually create your prenup for you is not a requirement in most states, some states do have other requirements regarding attorneys. For example, in California, if you and your fiancé chose to waive or modify spousal support in your prenup, the waiving or modifying party must be represented by an attorney at the time of the signing of the agreement. As we touched on before, it is very important to the court that both parties be fully informed and aware of the consequences of their prenup. In this example, that consequence would be waiving the right to receive financial support from their ex-spouse after divorce.
Other states, such as Minnesota, require that both parties have the opportunity to consult with independent counsel. This helps to ensure that the agreement is completed a reasonable amount of time before the wedding and ensures that one party is not preventing the other from seeking the advice of an attorney.
Be aware that many states that have attorney requirements allow that requirement to be waived. However, that waiver doesn’t mean that you can just share one with your fiancé. The above still discussion applies.
Having an Attorney is NOT a Requirement
With all that said, be aware that you are NOT required to have an attorney create and draft your prenup for you. You and your fiancé are free to draft your own agreement – or use HelloPrenup for a leg up – to avoid those steep hourly rates. You are free to bring your fully formed draft to a lawyer for representation or advice, saving you thousands of dollars in the process.
Julia Rodgers is HelloPrenup’s CEO and Co-Founder. She is a Massachusetts family law attorney and true believer in the value of prenuptial agreements. HelloPrenup was created with the goal of automating the prenup process, making it more collaborative, time efficient and cost effective. Julia believes that a healthy marriage is one in which couples can openly communicate about finances and life goals. You can read more about us here Questions? Reach out to Julia directly at [email protected].
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