by Shae Irving & Attorney-Mediator Katherine E. Stoner
It may sound surprising coming from advocates of self-help law, but yes, you do need a lawyer when making a prenuptial agreement.
If you want to end up with a clear and binding premarital agreement, you should get help from a good lawyer. In fact, you will need two lawyers — one for each of you. Here's why.
Our Anglo-American legal system views marriage as a matter of contract between two consenting adults. The terms of the “marriage contract” are dictated by the laws of the state where the married people live, unless they have a prenuptial, or premarital, agreement in which they set their own terms.
Varying State Laws
The laws governing marriage contracts vary tremendously from state to state. You can certainly do some of your own research to find out general information on your state's laws relating to prenups. But, if you don't want to invest your time learning the ins and outs of your state's matrimonial laws, a lawyer who knows the intricacies of those laws will be an important resource. The lawyer can help you put together an agreement that meets state requirements and says what you want it to say.
Independent Legal Advice
This explains the desirability of having one lawyer, but why two? Prenuptial agreements are still scrutinized by the courts, sometimes very closely. If you want your agreement to pass muster, having independent lawyers advise each of you can be critical. While most courts don't require that each party to a prenup have a lawyer, the absence of separate independent advice for each party is always a red flag to a judge. On a practical note, having separate legal advisers can help you and your fiance craft a lasting agreement that you both understand and that doesn't leave either of you feeling that you've been taken advantage of.
Decide What You Want Before Seeing a Lawyer
That said, it's best not to ask your lawyers to start writing up a draft or final agreement until the two of you have settled on its essential terms. You should put those terms in writing — either in a written outline or a draft agreement you create yourselves. A prenup prepared by a lawyer who isn't working from terms you've both agreed on is likely to be one-sided and adversarial. If you provide your lawyers with an outline or draft prepared by both of you, the whole process — and the final document — will be more balanced.
All of this assumes that you select and use lawyers who are not only competent and experienced in matrimonial law, but who are also capable of supporting the two of you in negotiating and writing up a loving, clear, and fair agreement. Finding the right lawyers can take some time, but it's worth the effort.
Copyright © 2006 Nolo