Hire a lawyer? Draft it yourself? Use an online prenup service? There are so many questions you may be asking yourself when starting your prenup journey. First of all, do you even need a lawyer to create a valid and enforceable agreement in Virginia? Second of all, do we both need a lawyer? Can we share one? There are SO many questions. Lets get into everything you need to know about the lawyer requirement for prenuptial agreements in Virginia.
Is a lawyer legally required for a valid and enforceable agreement in Virginia?
No, a Virginia lawyer is not required to create a valid and enforceable prenuptial agreement. Nothing in the Virginia Premarital Agreement Act mandates this and, in fact, Virginia case law also supports that lawyers are not required to enforce a prenup. (Chaplain v. Chaplain, (2009)). However, the presence or absence of a prenup may be considered when determining whether or not to set aside the agreement. For example, a court may look at the entire situation, and whether or not each party had lawyers may come into play, among many other factors like how much time each party had to review the agreement, if there was any undue influence, the sophistication of each party, etc.
Can we share a lawyer?
Nope. Two parties to a prenuptial agreement cannot share one lawyer as this creates a conflict of interest. One attorney cannot adequately advocate for two parties with opposing interests. For example, if one partner would benefit from a lump sum clause in the agreement but the other would not, it becomes very difficult for the attorney to adequately represent both parties, potentially requiring them to favor one party over the other.
Can only one person hire a lawyer for a prenup in Virginia?
Yes, it is possible for only one party to hire a lawyer to a prenup and for it to hold up in a Virginia court. However, it’s always best practice to have both partners hire lawyers. In fact, some lawyers may choose not to work with clients whose fiancé does not also have a lawyer due to liability issues. But it’s not a per se requirement that both parties have attorneys in Virginia.
For example, in Chaplain v. Chaplain (2009), the Virginia Court of Appeals addressed whether a prenuptial agreement was enforceable, even though only one party (the husband) had a lawyer. The wife, who was new to the U.S., had limited English skills, did not have an attorney, was not given a copy of the agreement beforehand, and signed it in the husband’s lawyer’s office without fully understanding it. Despite these facts, the trial court initially ruled the agreement enforceable, finding it was voluntarily signed. However, the Court of Appeals reversed this decision—not because the wife lacked legal counsel, but because successfully proved that the agreement was unenforceable for other reasons, such as improper financial disclosure on the husband’s behalf. Most importantly, this Virginia court emphasized that Virginia law does not require both parties to have lawyers for a prenup to be valid, although the absence of independent counsel may be considered as one factor in determining enforceability.
Can one person pay the legal fees for the other person’s prenup attorney in Virginia?
While this issue isn’t directly addressed in the Virginia Premarital Agreement Act, it is generally considered acceptable for one party to pay the other’s attorney fees—as long as it’s done transparently and without coercion. The key is that the financially dependent party must still have the freedom to choose their own independent legal counsel. Courts may look at whether the arrangement compromised the fairness of the agreement. On the other hand, offering to pay for the other party’s lawyer can actually support enforceability, by ensuring both parties had meaningful legal advice. But, if the paying party ultimately pressures the other into hiring a specific attorney (to benefit the payor) or rushes the process, it could backfire and undermine the prenup’s validity. Bottom line? Paying for attorney fees for your partner is okay, just make sure they aren’t forced into choosing a specific attorney or rushed into finding one.
Can I write my own prenup in Virginia and have it notarized?
Yes, it is possible to write your own prenuptial agreement in Virginia and have it notarized and ultimately upheld by a Virginia court. According to the Virginia Premarital Agreement Act (VA Code § 20-149 et seq), there is no requirement for an attorney to draft a prenup. As long as the person seeking to enforce the agreement followed all the correct formalities and enforceability requirement, the agreement may be upheld. You may also have a DIY prenup notarized (which is a smart way to add additional protection to your agreement). Notarization is the act of an official Notary Public acknowledging that both parties have signed the agreement and verified their identities. It helps to deter any questions of fraud.
What do prenup lawyers do?
If you’re ready to hire a prenup lawyer in Virginia, you may be wondering what they actually do for you. A prenup lawyer can draft the agreement, review an already drafted agreement, make edits, explain clauses to you, make suggestions for your best interests, answer any legal questions, and ensure the agreement is state compliant. In short—prenup lawyers can give you the utmost peace of mind that your agreement is fair, enforceable, and beneficial to you.
The bottom line on the lawyer requirement for prenups in Virginia
As you can see, hiring a lawyer is not required for a valid and enforceable prenuptial agreement in Virginia. The Virginia Premarital Agreement Act and relevant case law underscore the importance of individuals’ right to contract around their property and rights when entering into a marriage. The best practice is for both parties to a hire a lawyer, but it can sometimes be okay for only one party to hire one, as long as there are no other circumstances that would suggest coercion or fraud. And definitely do not share one lawyer, as that can create a conflict of interest. Bottom line? Prenup lawyers aren’t required but they can offer a ton of benefits such as ensuring a state-compliant agreement and peace of mind.
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: Nicole@Helloprenup.com
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