Do Both Parties Need a Lawyer for a Prenup?
No, you don't need two separate lawyers to sign a legally binding prenuptial agreement. People can, and often do, waive the right to hire independent counsel.
This is one of the questions we hear most often at Prenup Pros®. Couples frequently tell us that they have read online, or have been told by friends or even other attorneys, that both partners must have their own separate lawyers for a prenup to be valid and enforceable.
That is not the law in the states where Prenup Pros provides prenuptial agreement services.
There is an important difference between having the right and opportunity to obtain independent legal counsel and being legally required to hire an attorney before signing a prenup. A person can have the right to hire a lawyer, be given a meaningful opportunity to exercise that right, and voluntarily decide not to do so. Courts and statutes repeatedly recognize that distinction.
Having independent legal counsel can certainly be beneficial, and either party who wants independent representation should hire his or her own attorney. But the decision belongs to that person. The law does not require someone who understands and agrees with a prenup to hire an attorney simply because he or she is entering into a premarital agreement.
Let's look at what the law and the courts actually say.
Do You Need a Lawyer for a Prenup?
No. In Florida, Georgia, New Jersey, New York, Nevada, Texas and Virginia, hiring independent counsel is not a legal prerequisite to entering into an enforceable prenuptial agreement. A person may choose to be represented by an attorney, but a person may also knowingly waive that opportunity and sign a valid prenup without independent representation. There is substantial legal authority supporting the principle that the absence of independent counsel does not make a prenuptial agreement invalid.
Texas provides perhaps the clearest statement of the rule. In In re Marriage of Sauls & Worley, 648 S.W.3d 359, 364 (Tex. App. 2021), the Texas Court of Appeals expressly held that "the advice of counsel is not a prerequisite to the validity of a premarital agreement". The court explained that the formality required by the Texas Family Code is that the agreement be in writing and signed by both parties.
The Texas Court of Appeals reaffirmed that principle in McDonald v. McDonald, No. 02-22-00446-CV (Tex. App. Fort Worth June 8, 2023). Neither spouse had been represented by an attorney in connection with the drafting or execution of their premarital agreement, yet the agreement was enforced. The court relied on Sauls and reiterated that advice of counsel is not a prerequisite to a valid premarital agreement, further explaining that “the mere fact that Wife was not represented by counsel is not sufficient to show unconscionability.” McDonald v. McDonald, No. 02-22-00446-CV, at 10 (Tex. App.—Fort Worth June 8, 2023).
Florida law follows the same basic principle. The Florida Supreme Court recognized decades ago that independent legal advice, although certainly desirable in many circumstances, is not a prerequisite to an enforceable prenuptial agreement. See Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962); See also Casto v. Casto, 508 So.2d 330 (Fla. 1987) (reaffirming Del Vecchio and recognizing that legal counsel is not essential to a valid marital agreement).
New York courts likewise recognize that a person may enter into a valid prenuptial agreement without independent counsel. See Forsberg v. Forsberg, 219 A.D.2d 615 (2d Dep't 1995); Matter of Barabash, 84 A.D.3d 1363 (2d Dep't 2011).
And New Jersey goes even further because its premarital agreement statute expressly contemplates that a party may voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel. N.J.S.A. §37:2-38.
The basic principle is not complicated. Do you both need a lawyer for a prenup? No, because the right to hire a lawyer includes the ability to decide not to hire one.
Can One Person Have a Lawyer While the Other Waives Counsel?
Yes. This is a common way to prepare a prenuptial agreement.
One person can hire an attorney to represent him or her in preparing the agreement. The other partner is informed that the attorney represents only the attorney's client, is given the opportunity to obtain independent legal counsel, and can then decide whether to hire an attorney or voluntarily proceed without one.
Courts have enforced prenuptial agreements entered into under circumstances like these. For example, in Lawrence v. Lawrence, 286 Ga. 309 (2009), the Georgia Supreme Court enforced a prenuptial agreement where the husband's attorney prepared the agreement and the wife did not retain her own attorney. She had been informed that she could obtain separate counsel but chose not to do so.
New York provides another example. In Werther v. Werther, 9 Misc.3d 1114(A) (N.Y. Sup. Ct. 2005), one spouse's attorney prepared and explained the agreement while the other spouse was advised that she could obtain independent counsel and declined to do so. The absence of a second attorney did not prevent enforcement of the agreement. See also Forsberg v. Forsberg, 219 A.D.2d 615 (2d Dep't 1995) (stating that the absence of independent counsel, without more, is not enough to invalidate a prenuptial agreement).
This is an important distinction. The attorney representing one partner does not also represent the other partner. The other partner has the right to obtain his or her own lawyer, but can intentionally decide not to exercise that right.
There is a practical common-sense component to this as well. Some people simply do not want to hire a lawyer. We have spoken with people who went through a difficult divorce or another unpleasant legal experience and have no desire to hire another attorney. Others understand the proposed agreement, agree with its terms, and do not want to incur the expense of retaining separate counsel.
The law should not require a person who does not want an attorney to hire and pay one simply to enter into a private marital contract that the person understands and wants to sign. The important thing is that the person has the opportunity and freedom to make that decision for himself or herself.
Can One Lawyer Handle a Prenup for Both Parties?
Generally, no. In a traditional attorney-client relationship, one attorney ordinarily should not represent both parties to a prenuptial agreement because the parties may have differing legal interests. But this question requires an important distinction:
One attorney representing both parties is not the same thing as a neutral professional working with both parties while representing neither of them individually.
An attorney representing one party to a traditional attorney-drafted prenup owes professional duties to that client. That attorney does not simultaneously become the independent attorney for the other party.
The neutral Mediated Prenup® process is different. The neutral attorney-mediator works with the couple together to identify the terms they mutually want included in their agreement. Neither partner is individually represented by the mediator, and each remains free to obtain independent legal counsel if desired.
A particularly useful court decision illustrating this distinction is In re Marriage of Hutchins, 2018 MT 275, 430 P.3d 502. Although Hutchins was decided by the Montana Supreme Court, the court was specifically applying Nevada law to determine whether the couple's premarital agreement was enforceable.
A single attorney had drafted the agreement. Importantly, however, the agreement expressly provided that the attorney did not represent either party individually. The wife later challenged the agreement, arguing in part that she did not have independent counsel.
The court rejected that argument, expressly stating:
“Nevada law does not require individual counsel for each party to a premarital agreement.” In re Marriage of Hutchins, 2018 MT 275, ¶ 20, 430 P.3d 502.
The court further emphasized that the agreement clearly provided that the attorney who drafted it did not represent either party. Under those circumstances, the fact that a single attorney prepared the agreement did not make the agreement involuntary or unenforceable. That doesn't mean that one attorney should attempt to provide independent legal representation to both parties. It demonstrates something different, and very important: a couple can use a neutral process in which neither party is individually represented, while each party remains free to obtain independent legal counsel if desired.
Why the Right to Waive Independent Counsel Matters
For the whole concept of a voluntary prenuptial agreement to work, each person must be free to decide whether he or she wants independent legal representation.
Think about the alternative. Suppose a person has read the agreement, understands it, agrees with its terms, has plenty of time before the wedding, knows that he or she has the right to consult an independent attorney, and affirmatively does not want to hire one. Why should that person be forced to hire and pay an attorney simply to make the marital agreement enforceable?
The law in the states we serve does not impose that requirement. What matters is the distinction between waiving the opportunity to obtain counsel and being deprived of that opportunity. Those are very different circumstances. A person who is prevented from consulting an attorney has not made a voluntary choice to proceed without one. A person who is given a meaningful opportunity to obtain counsel and knowingly says, “No, I don't want or need my own lawyer,” has exercised a choice.
The Virginia case of Rogers v. Yourshaw, 18 Va. App. 816, 448 S.E.2d 884 (1994), illustrates that distinction particularly well. The Virginia Court of Appeals upheld the agreement where the wife had been given the opportunity to obtain independent counsel, voluntarily declined to do so, and signed an agreement containing a waiver of consultation with counsel. The court emphasized the opportunity to engage an attorney that she had been given and her voluntary decision not to exercise it.
That is also why timing matters. A person who receives a proposed prenup sufficiently in advance of the wedding has time to read it, consider it, ask questions and obtain independent legal counsel if desired. If that person then chooses not to hire an attorney, the circumstances can demonstrate that the decision was intentional rather than the result of having no realistic opportunity to seek legal advice.
Waiving a Lawyer Does Not Mean You Should Use a DIY Prenup
There is another distinction that is equally important. The fact that the law does not require each person to hire a lawyer does not mean that preparing your own prenup from an online form is a good idea.
Whether someone must have independent representation and whether a prenuptial agreement should be professionally prepared are entirely different questions.
A prenup can address separate and marital property, businesses, income earned during the marriage, retirement accounts, debts, jointly acquired property, spousal support, estate rights, death benefits and numerous other financial issues. It also must comply with the applicable state law and be prepared and executed under circumstances that support its enforceability.
That is why couples hire Prenup Pros. Depending on the service selected, we can help clients explore the available options for their agreement, prepare a customized prenup reflecting the terms they want, and identify circumstances that should be addressed before the agreement is signed.
The objective is not to insert lawyers into the process merely for the sake of having lawyers involved. The objective is to create a carefully prepared agreement that accurately reflects the parties' intentions, complies with applicable law, and is signed through a process designed to support its enforceability.
The Bottom Line: Do Both Parties Need Their Own Prenup Lawyers?
No, not in the states Prenup Pros serves. If a person wants independent legal representation during the prenup process, that person should absolutely obtain it. No one should be discouraged or prevented from consulting his or her own attorney.
But the opposite is also true. A person who does not want independent counsel should not be forced to hire a lawyer simply to enter into a valid prenuptial agreement. In the states where Prenup Pros provides services, a person can waive the opportunity to obtain independent counsel and enter into an enforceable prenup without hiring a separate attorney.
The key is choice. Give each person the opportunity to obtain independent counsel. Give each person sufficient time to make that decision. Make clear who, if anyone, an attorney represents. Then allow each competent adult to decide whether independent representation is desired. If one or both parties wish to waive their right to counsel, have them do so in writing.
Prenup Pros offers Attorney-Drafted Prenups in Florida, Georgia, New Jersey, New York, Texas and Virginia, as well as Mediated Prenups® for couples who want to work together through a neutral process. In Nevada, Prenup Pros provides registered document preparation services and does not provide Nevada legal advice or legal representation.
Frequently Asked Questions
Do both parties need a lawyer for a prenup?
No. In the states where Prenup Pros provides prenuptial agreement services, both parties are not legally required to hire separate attorneys in order to enter into a valid prenup. Each person should have the opportunity to obtain independent counsel, but a person can voluntarily decide not to hire an attorney.
Can one person have a prenup lawyer while the other doesn't?
Yes. One party can be represented by an attorney while the other party chooses to proceed without independent counsel. The attorney represents only his or her client, and the other party remains free to obtain separate counsel if desired.
Can I waive my right to have a lawyer review a prenup?
Yes. A person can voluntarily waive the opportunity to consult independent counsel. The applicable requirements vary by state. New Jersey, for example, expressly addresses a written waiver of the opportunity to consult independent counsel in its premarital agreement statute.
Can one lawyer represent both people in a prenup?
Ordinarily, one attorney should not undertake to represent both parties in a traditional attorney-client relationship. That is different from a neutral process in which an attorney-mediator works with the couple while representing neither person individually.
Is a prenup valid if one person didn't have a lawyer?
Yes, a prenuptial agreement can be valid and enforceable even though one party did not have independent counsel. Courts in the states discussed in this article have enforced prenups signed without separate representation, and several have expressly recognized that independent counsel is not a prerequisite to validity.
Legal Authorities Discussed
Florida
Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla. 1962)
Casto v. Casto, 508 So.2d 330 (Fla. 1987)
Fla. Stat. §61.079
Georgia
Lawrence v. Lawrence, 286 Ga. 309 (2009)
New Jersey
N.J.S.A. §37:2-38
New York
Forsberg v. Forsberg, 219 A.D.2d 615 (2d Dep't 1995)
Matter of Barabash, 84 A.D.3d 1363 (2d Dep't 2011)
Werther v. Werther, 9 Misc.3d 1114(A) (N.Y. Sup. Ct. 2005)
Nevada
NRS Chapter 123A
In re Marriage of Hutchins, 2018 MT 275, 430 P.3d 502 (Mont. 2018) (applying Nevada law)
Texas
Tex. Fam. Code §§4.002, 4.006
In re Marriage of Sauls & Worley, 648 S.W.3d 359 (Tex. App. 2021)
McDonald v. McDonald, No. 02-22-00446-CV (Tex. App. Fort Worth June 8, 2023)
Virginia
Va. Code §§20-147 through 20-155
Rogers v. Yourshaw, 18 Va. App. 816, 448 S.E.2d 884 (1994)
Prenup Pros® offers attorney-drafted prenuptial agreements and attorney-prepared Mediated Prenups to clients located in FL, GA, NJ, NY, NV, TX and VA. 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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