Do Both Spouses Need a Prenup Lawyer?

Why would a couple only want to hire one attorney?

People often wonder if they can just hire one attorney for a few reasons. Common motivations include: 

• One party simply doesn’t want the hassle of speaking with an attorney. They don’t like the drama, the expense, or the time spent on speaking with a lawyer. 
• One party doesn’t feel that they need an attorney because they know what they want, or they don’t care what goes into the prenup. 
• One party thinks that they can get all of the information they need through their partner’s attorney. 

At the end of the day, while these reasons may seem practical, they may not be possible. For one, some attorneys will not work with clients whose partner does not also have an attorney. Also, only having one attorney can create legal risk if the prenup is ever challenged, as courts may scrutinize whether both parties entered the agreement voluntarily, with full understanding of the terms, which often turns on whether either party had independent legal counsel. 

Do we both need a lawyer? 

The answer is nuanced: It depends on your state and your situation. Generally, in most states and situations, it’s not necessary for both parties to hire a lawyer. One party may hire a lawyer while the other party does not. However, there are some scenarios where both parties may be required to hire counsel, such as if you include embryo clauses in your prenuptial agreement in New York. 

In addition, some lawyers may refuse to work with a client whose partner is not also represented by counsel. This may be because these lawyers have a lower risk tolerance and don’t want to risk a potential future prenup challenge based on the other party claiming they either didn’t understand the agreement or didn’t voluntarily sign it. 

Can we share a prenup lawyer? 

No. Sharing a lawyer is generally not permitted under each state’s rules of professional conduct. This is because sharing a lawyer when two parties are on opposite sides of a contract creates a conflict of interest. It can become morally impossible for one lawyer to effectively advocate for both parties’ interests at the same time. 

For example, if one attorney were to represent Fiance A and Fiance B in their prenup, and Fiance A would benefit from waiving spousal support, but Fiance B would not, the lawyer would be forced to choose one party’s interests over the other. 

Waiver of counsel blocks 

If one party is legally able to, yet doesn’t want to hire a lawyer, there may still be state requirements mandating that the non-represented party include a written waiver of counsel in their prenuptial agreement. This waiver of counsel is sometimes a formality required by state statutes, and other times it’s just included for good measure. For example, California Family Code § 1615(c)(1) says that a prenup may be treated as involuntary unless the party giving up rights either had their own lawyer or “expressly” waived the right to one in a separate written document after being advised to get legal counsel.

The purpose behind a waiver of counsel in a prenuptial agreement is to make sure the person without a lawyer understands the rights they’re giving up, i.e., their right to speak with a lawyer to advise them. Regardless of what state you’re in, if one party is not hiring a lawyer, they should include a waiver of counsel block in the prenuptial agreement for extra protection. 

What situations require both spouses to have a lawyer?

The only statutory or caselaw-mandated requirements for strictly requiring an attorney review and sign off on your prenup are the following.

• California: If both parties are waiving or modifying spousal support (California Family Code § 1612(c)).
• New York: If both parties are adding embryo clauses to the prenup (New York Family Court Act § 581-306(a))
• South Carolina: Prenups in this state that exclude property from being marital are valid but only if both parties are separately represented by counsel and pursuant to full financial disclosure (S.C. Code Ann. § 20-3-630(A)(4))

West Virginia: In Ware v. Ware, 224 W. Va. 599 (2009), the West Virginia Supreme Court held that for a prenuptial agreement to be presumed valid, both parties must be represented by independent counsel at the time they execute it.