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  • Writer's picturePrenup Pros

Do We Both Need a Lawyer?

You don’t ‘need a lawyer’ to sign a legally binding prenuptial agreement. People often decide to Waive their right to hire counsel.


Except for California where there are unique statutory requirements, partners signing a prenuptial agreement can freely waive their right to engage independent counsel to represent them. ​If you read the Uniform Premarital Agreement Acts of Florida, New Jersey, Virginia and Nevada, you will see that there is no law under any of those statues that requires either partner to hire an attorney in order to be able to enter into a legally binding prenuptial agreement. The truth is people must be able to waive the right to hire their own counsel and sign a prenup and have it be valid and fully enforceable under the law (provided it is written the right way).

Heart for Mediated Prenups

Frequently we have clients who tell us that their significant other went through a horrible divorce experience and as a result, never wants to speak to another lawyer again! That poor person must be able to waive the right to the assistance of an attorney and still sign a prenuptial agreement that will be fully enforceable and not subject to challenge on that basis. Indeed for the whole concept of a voluntary prenuptial agreement to work, a party cannot be strong-armed into hiring a lawyer just to be able to enter into a prenuptial agreement that will hold up in court.


In fact, courts have held that when one party to a prenuptial agreement does not have independent counsel, that alone does not constitute grounds to nullify the agreement. (See Matter of Barabash (84 AD3d 1363 (2011)), citing Forsberg v Forsberg, 219 A.D.2d 615, 616 (1995)). Recent case law from the Superior Court of New Jersey clarified that parties to a New Jersey premarital Agreement can indeed waive their right to counsel, but under 37:2-38 of New Jersey's Uniform Premarital and Pre-Civil Union Agreement Act, the waiver must be in writing prior to signing the prenuptial agreement. (Dobre v. Dobre (N.J. Super. App. Div. 2018)). A Florida district court enforced a prenuptial agreement that was written up by the parties without the assistance of counsel, and executed on the day of their marriage. (Stern v. Stern, 636 So.2d 735 (Fla. App. 1993)).

As a practical matter, wouldn’t it be a shake-down on the consuming public if a person was forced to hire, pay and deal with a lawyer just to be able to sign a marital contract and have it be enforceable, if they otherwise understood and agreed with all of the terms of that agreement? It would be outrageous if a person was forced to hire a lawyer to represent them and review their private marital agreement if that person did not want to deal with or pay a lawyer.

Although parties can decline to hire their own attorneys, every person signing a prenuptial agreement must have been provided the opportunity to engage their own attorney, if they wanted to, prior to signing the agreement. In other words, a party signing a prenuptial agreement must not have been deprived of the opportunity to have the agreement reviewed by their own counsel, if they want legal assistance. See Rogers v. Yourshaw, 18 Va. App. 816, 823 (1994) (holding that the prenuptial agreement was executed voluntarily where the wife "was afforded the opportunity to obtain independent legal counsel but voluntarily declined to do so and signed the agreement containing a provision waiving consultation with counsel for both parties")).


That is why it is so important to present a draft prenuptial agreement to your partner far in advance of the wedding date -- If your partner wants to waive the right to have an independent attorney provide counsel, signing the agreement far in advance of the wedding date shows that the waiver of the right to counsel was truly voluntary and on purpose (as opposed to being deprived of the opportunity to engage an attorney because the agreement was presented too close to the wedding date).

We often get asked: "Don't we each need our own lawyers in order for the prenup to be enforceable?"

If a person wants representation by independent counsel during the prenup negotiation process, then that person most certainly should engage an attorney. If independent counsel is not desired, you should not force a party to hire a lawyer to represent them in connection with a prenuptial agreement. If a person really does not want to hire a lawyer to get legal feedback and advice about the prenup, then any law requiring that person to hire an attorney just to sign a valid marital contract would force that party to sign it under the "duress" of unwanted circumstances and the pressure of forced interaction with a third party lawyer.


Most family lawyers take the position that both parties "must" have their own attorneys in order for a prenuptial agreement to be binding. In reality, there is no legal basis for that overly broad assertion (except in California). Family law attorneys generally feel "safer" and less exposed to potential malpractice claims when each party signing a prenuptial agreement has independent representation, and when multiple attorneys are involved it becomes a bigger "billable event".


In reality, having counsel represent one or both of the parties is not what makes a prenuptial agreement legally enforceable (otherwise how would online form providers like LawDepot or Hello Prenup exist...?) The prenup just needs to be drafted and executed by the parties in compliance with all of the applicable state and federal laws - lawyers or no lawyers involved. However, many people don't want to risk doing such an important contract wrong and choose to hire a prenup attorney (or a Prenup Mediator) because they can:

(i) Explore the myriad of options and possibilities for the terms to be included in a couple's prenuptial agreement;

(ii) Prepare a customized premarital agreement that incorporates all of the desired terms (that are "do-able") and complies with applicable state and federal laws; and

(iii) Do a "sanity check" and ensure that none of the unique conditions or circumstances surrounding the couple would preclude them from entering into a valid and enforceable prenup (e.g., defenses to enforceability such as last minute timing, language barriers, illegal terms, immigration status, etc.)


In fact, when Prenup Pros acts in the capacity as neutral Prenup Mediators to work together with couples to create a Mediated Prenuptial Agreement, both partners usually end up waiving the right to have their mediated agreement reviewed by their own respective attorneys, because the contract already reflects the terms and conditions that they agreed to and want to cover.

Couple Holding Hands

It is important that each party to a prenup have a full understanding of the document, its terms and the legal consequences of those terms. A prenup is one legal document that you want written as clearly as possible, so that a non-attorney can actually understand what it says and means. At Prenup Pros, our goal is to prepare a contract that the couple can review, discuss and understand together, when the time is right.


Forsberg v Forsberg 631 NYS2d 709
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Download PDF • 107KB
Dobre v. Dobre (N.J. Super. App. Div. 2018)
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Download PDF • 222KB
Stern v. Stern, 636 So.2d 735
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Download PDF • 148KB
In the Matter of Eugene J Barabash 84 AD3d 1363
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Download PDF • 85KB

 

Prenup Pros® currently offers prenuptial agreements to clients located in VA, FL, NV, NY and NJ. For more information on the firm or to schedule a free consultation with a Prenup Pros attorney or mediator, go to www.PrenupPros.com.


DISCLAIMER: This article and its contents represent the opinions of the author only and (1) is not intended as a solicitation, (2) is not intended to convey or constitute legal advice, and (3) is not a substitute for obtaining legal advice from a qualified attorney. You should not act upon any such information without first seeking qualified professional counsel on your specific matter. The hiring of an attorney is an important decision that should not be based solely upon articles or advertisements.


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