Tying the knot soon? Congrats! If you’re considering a prenup (which you should), you may be wondering if a lawyer is required to create a valid and enforceable contract in Texas. Can you share a lawyer? What about covering the legal expenses of your fiancé’s lawyer? What about if one person hires a lawyer and the other doesn’t? And if you hire a lawyer, what do they even do!? We cover this, along with real Texas case law, to help you understand the legal requirements for lawyers in Texas prenups. Let’s dive in!
Is hiring a lawyer a legal requirement for a prenuptial agreement in Texas?
No, hiring a lawyer is not a prerequisite for a valid and enforceable prenuptial agreement in Texas. However, a court may consider whether each party had independent counsel when evaluating the enforceability of the agreement and the circumstances surrounding the execution of the agreement. Hiring lawyers typically helps weigh in favor of enforcing the agreement because it shows that each party voluntarily and knowingly entered into the agreement by having a legal professional advocating for them.
Texas case law on the requirement of a lawyer for a prenup
A perfect example of Texas courts upholding prenups, even where lawyers aren’t present, comes from the case McDonald v. McDonald (2023). There, the court heavily emphasized Texas’s public policy favoring the freedom of parties to contract with one another. The court specifically upheld a prenuptial agreement, even though neither parties were represented by an attorney—the husband drafted the contract himself. In this case, the wife challenged the validity of the agreement, partly arguing that she didn’t have an attorney, so it shouldn’t be upheld. The court disagreed and explained that hiring a lawyer is not a requirement for a prenup in Texas. In addition, the wife had the opportunity to read the agreement before signing, both parties were mature, had been married multiple times (including to each other), and neither had a legal advantage.
Can only one person hire a lawyer for the prenup?
There’s no requirement that both parties hire a lawyer, let alone a restriction against only hiring one attorney. However, it’s typically best practice that if one party hires a lawyer, the other party should as well to deter any potential arguments that the person without the lawyer was coerced into signing the agreement or didn’t understand the terms. Additionally, some Texas attorneys may choose to work only with clients whose partners are also represented by counsel, often as a precaution to reduce liability. However, this is a personal preference—not a legal requirement. In fact, Texas courts have consistently emphasized the state’s strong public policy favoring the freedom to contract, and imposing a mandatory counsel requirement on both parties could unduly restrict that right.
Can we share one lawyer for a prenup in Texas?
No, you and your partner cannot share a lawyer for a prenuptial agreement in Texas because it may cause a conflict of interest for the lawyer. For example, prenup lawyers are required to advocate for their clients’ best interests. If one party wants alimony and the other party does not want to pay alimony, how can one lawyer advocate for both parties’ interests in this situation? It becomes a conflict of interest, so it is best avoided. Bottom line? Don’t use the same attorney for a prenup in Texas.
Can one person pay for their partner’s attorney for a prenup?
Potentially—as long as the party paying the fees doesn’t force or pressure the other party to hire a certain attorney. Each person should have their own meaningful choice in which attorney to hire and not be restricted in their legal services option just because their partner is paying their legal fees.
A Texas court actually dealt with this exact issue in 2012, where a husband paid for his wife’s prenup attorney, but forced her to hire an attorney of his choosing—one who shared an office building with his own longtime attorney. This attorney also never had a chance to review the final version of the agreement, which was altered to remove asset values and was hidden from her until just hours before the wedding. The husband also falsely assured the wife that her attorney had reviewed and approved the agreement. The court found this conduct—steering her to a lawyer, limiting access to counsel, and misrepresenting attorney approval—sufficient to support a finding of involuntary execution, rendering the prenup unenforceable under Texas law. (Moore v. Moore (2012)).
What do lawyers do when you hire them for a prenup?
If you do decide to hire a Texas prenuptial agreement attorney, they will serve several different functions for you. The first thing an attorney will do is either draft the agreement for you if you don’t have one yet or review the agreement if you already have a prenup drafted. They may suggest edits, explain the terms to you, and answer any of your legal questions. At the end of the day, a prenup lawyer makes sure your prenup is tailored to your needs, makes sure you understand what you are signing, and is state-compliant so it can stand in court.
The bottom line on the legal requirements of a lawyer for a prenup in Texas
In Texas, you’re not required to have a lawyer to create a valid and enforceable prenuptial agreement. You and your partner can draft your own prenup, and as long as it meets all the legal requirements under Texas law, a court may uphold it. That said, you should not share a lawyer—doing so can create a conflict of interest and negate representation and even constitute involuntariness in some cases. It’s perfectly fine for only one partner to hire an attorney, and if one person wants to pay for the other’s legal fees, that’s allowed too, as long as there’s no pressure to choose a specific attorney. Bottom line: lawyers aren’t mandatory, but having one can go a long way in creating a personalized agreement and offering peace of mind.
Daryl G. Weinman is a board-certified family law attorney and founder of Weinman & Associates, P.C. in Austin, Texas. With over two decades of experience, she focuses exclusively on family law matters, including divorce, custody, support, and prenuptial agreements. Known for her strong litigation skills and collaborative mediation approach, Daryl is committed to guiding families through life’s legal challenges with clarity and care. She is a graduate of Colgate University and New York Law School, and actively involved in several legal organizations.
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