You’re in love and you know your love will last forever. Still, while you and your betrothed are optimistic, you are also practical. You want to make smart financial decisions now to ensure you are both protected and secure in the unfortunate circumstance that your marriage comes to an end sooner than you had hoped.
You’ve agreed to have a prenuptial agreement drawn up, and because you have discussed your financial situation and concerns with transparency and honesty, you’re considering working together with one lawyer who will draw up the documents. After all, why pay for two attorneys when the two of you are so aligned in your goals and intentions?
Not so fast! California couples who get divorced and expect the court to uphold a prenuptial agreement that was prepared by a single attorney may find themselves in for a rude awakening. Here’s what you need to know about the risks of hiring one California attorney to represent both of you when drawing up a prenuptial agreement.
Just Because You Can Doesn’t Mean You Should
To be clear, you certainly CAN have one attorney assisting both of you during the creation of a prenup, but no California divorce attorney would recommend it. There are several reasons for this and all of them are directly related to whether or not the agreement would be considered enforceable in a California divorce court.
Enforceability of California Prenuptial Agreements
The biggest issue for a couple who works with a single attorney to create a prenuptial agreement is that of enforceability. Will a California court find the agreement enforceable? While you may both be in agreement today about what is fair, after the ups and downs and difficult emotions that ultimately lead to a divorce, you may find yourself feeling not as agreeable in the future. Down the road, one or both partners might feel what they agreed to in the beginning is now unfair and one or both may contest the prenup.
When concerns are brought before a judge who learns each partner did not have separate representation, it’s more likely than not that the judge will determine the agreement is unenforceable on that fact alone…and then you’re in for a long, drawn out litigation process (which is exactly what you wanted to avoid when you created the prenup, right?).
If there is only one attorney involved in the creation of a prenup, the presumption is that the agreement is invalid. That means the party who wants the prenup to be upheld will have the burden to prove the agreement is valid, and that means both people will have to spend time and money in court. You can see how ironic it is–a couple tries to save a few dollars now by hiring only one attorney to create a prenup only to spend much more time and money in court later.
California Divorce Courts Want to Make Sure Both Parties’ Interests are Considered
The court will have questions about any potential conflicts of interest that may have existed when the prenup was created:
Were there good faith disclosures exchanged between the parties when drafting the assets and debts list for each of them? Were copies of actual bank and investment statements exchanged between the parties or merely a list? Was there enough time for each party to meet with his/her individual attorney before negotiating the terms? If one person owned a business, was there an appraisal on that business before marriage or at least a reasonable estimate of value based on the exchange of copies of tax returns? Will there likely be a severe disparity in income after the separation? Was there an attempt to waive spousal support that could be determined to be “unconscionable” by the court at time of enforcement? Was there a 7-day waiting period between the time the final draft was received by the parties and the time the agreement was signed and notarized?
These are just a few of the kinds of questions a judge might ask and consider when determining whether the prenuptial agreement is valid.
If the Lawyer is on Both Sides Then Who is on Your Side?
The judge will want to ensure that one party did not exercise undue influence on the other party to get them to agree to the terms of the prenup. Of course, undue influence can occur even if each party has separate representation, but it’s far less likely. The entire purpose of having your own attorney is to make sure YOUR interests are represented. If your spouse were using coercion or pressuring you to get you to agree to the terms of a prenup, at least you would have a lawyer with whom you could discuss these issues confidentially, and they would then advocate on your behalf in a professional and effective way in discussions with your partner’s lawyer.
Even the most ethical and honest attorney would have difficulty navigating the nuance and complexities of drawing up a prenuptial agreement that serves both parties fairly. If an attorney represents a couple, then he doesn’t represent either individual. What I’ve always said about this is if an attorney is on both sides then no one is truly on YOUR side. If it’s important enough to you and your partner to have a prenuptial agreement, then it should be important to each of you that your individual interests are considered and negotiated.
Make Sure You Work with Two Experienced Attorneys to Avoid Other Prenup Pitfalls
Your attorney and your partner’s attorney should both be experienced in drafting and reviewing prenuptial agreements. Even with separate representation, you and your partner would also be wise to be aware of some of the common reasons a prenuptial agreement may be considered invalid by a California judge. For example:
- The agreement must be signed by both parties and it must be clear neither party signed as a result of coercion or while under duress.
- Both parties need to be clear that they had adequate time to review the agreement before signing, and in California that means a 7-day waiting period. I recommend you plan to have the agreement ready for review as far in advance as possible–prenups prepared a week before a wedding and signed too close to the day of the ceremony could be a red flag to the court that things were not on the up and up.
- The document should not include agreements about alimony or spousal support that are not in accordance with California law, nor should it include anything about child support or custody for children born within the marriage.
Two Last Points
California law does not require that signatures on a prenuptial agreement be notarized, but having them notarized is an additional assurance to a judge that both parties signed the document freely and willingly.
As I mentioned at the outset, you and your spouse are not required by California law to have separate representation, but it’s certainly advised. If you’re dead set on working with a single lawyer for the both of you, you’ll have to complete a document called a “Written Statement of Waiver.” Doing so does not ensure a judge will enforce the prenuptial agreement in the future, but having this signed document could help. Even so, most attorneys who do this kind of work all the time will discourage you from taking the risk of invalidity.
The Bottom Line
Working with your partner to create a prenuptial agreement is a smart and loving way to ensure both of you enter marriage with peace of mind, but trying to save a few dollars by not hiring independent attorneys to represent each of you is counterproductive in the long run. Of course, you hope you’ll never get divorced and that the prenup will never need to be looked at again, but should the worst come to pass, make sure you have an agreement that will be held up in court. I would love to help you and your soon-to-be spouse with your prenuptial (or post-marital) agreement. Please reach out to schedule a consultation with me to discuss your options and learn more about the process.
Explore your no-court divorce options and the prenuptial process in Santa Rosa and Sonoma County and schedule a confidential consultation with divorce lawyer Jeanne Browne. With more than 30 years of experience helping couples divorce without court through mediation and collaborative practice, she will give you compassionate legal advice on your issues related to family law, divorce, and prenuptial/postnuptial agreements. Click here to schedule a meeting.
Please Note: Articles posted on this website are for general information purposes only and are not to be considered legal advice. Every situation is unique and we recommend you reach out for a private conversation about your specific circumstances and concerns by booking a consultation.