Do We Both Need a Lawyer?
No. Partners signing a Prenup can Waive their right to hire a Lawyer.
Except for California where there are unique statutory requirements, partners signing a prenuptial agreement can 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 requirement under any of those statues that one partner--or both partners—must hire a lawyer in order to be able to enter into a legally binding prenuptial agreement. In reality, people must have the right to waive their right to counsel and sign a prenup and have it be legally binding (provided it is written the right way). Frequently we have clients who say that their partner went through a horrible divorce experience and as a result, never wants to speak to another lawyer again. That person must be able to waive their right to the assistance of an attorney, and still be able to sign a prenuptial agreement that is legally compliant and enforceable, and not subject to challenge.
In fact, when we act as Prenup Mediators to work together with couples to create a Mediated Prenuptial Agreement, both partner usually end up waiving the right to have their agreement reviewed by an attorney, because it already reflects the terms they agreed to and want.
We often get asked: Do We Both Need a Lawyer? You should not force a person to hire a lawyer to represent them in connection with a prenup, if that person really does not want to deal with their own attorney – otherwise you would be forcing that party into signing a prenuptial agreement under circumstances they did not want -- which might constitute “duress”, coercion, and/or deprive them of the ability to voluntarily sign a prenup under the conditions that made them comfortable.
So for the whole concept of a voluntary prenuptial agreement to work, a party cannot be required to have a lawyer in order to enter into a prenup that is legally binding and enforceable. 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 an attorney to represent them and review their private marital agreement if that person did not want to deal with or pay an attorney.
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)).
However, every person signing a prenuptial agreement must have been provided the opportunity to engage their own attorney, if they want to.
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 to. That is why it is 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).
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.
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.