Do You Need to Hire a Lawyer for a Prenup?

What is a Prenuptial Agreement?

A prenuptial agreement, or prenup, is a legally binding contract between two people before they get married. In this contract, the couple discloses their assets and debts and determines how they will be divided if you were to part ways later on. The contract may also outline what will happen with your estates if either person dies, or how spousal support will be determined. In the best case scenario, prenuptial agreements are rarely used – until things go wrong.
While it can be awkward, discussing a legally binding contract before you tie the knot is important. Perhaps the most unfortunate misconception about prenuptial agreements is that they are only for those with high assets or substantial wealth. Many people can benefit from a prenup, even if neither party has significant wealth . Even if you don’t have much now, in the future, you may be involved in a high-value legal dispute.
Many people choose to enter into a prenuptial agreement because one person was previously married and wants to protect the wealth they acquired during their first marriage. Others have left the workforce to care for children and want to ensure that they can support themselves if there is a divorce. In some situations, people want to ensure and clarify how property will be divided in the event of a divorce.
Without a prenup, it can be very difficult to figure out how to divide property, so it is important to have a conversation. It addresses a multitude of issues that a couple have to work through before their wedding day, making it easier to address them before it is too late.

Requirements for a Valid Prenuptial Agreement

To be enforceable, a valid prenuptial agreement must satisfy the following criteria:

• Written agreement signed by both the bride and groom.
• Signed voluntarily, not coerced or based on fraud.
• Cannot be unconscionable (extreme unfairness).
• In general, each party should have the opportunity to have an attorney review and advise before signing.

While this list seems easy enough to comply with, it is common for parties moving forward with a prenuptial agreement to nevertheless waive or abandon one or more of the requirements outlined above. In doing so, an agreement that may otherwise be enforceable could be invalidated if it is ever questioned in the future. For this reason, while it is possible for a couple to prepare their own prenuptial agreement, this is not advisable. Instead, we suggest contacting a knowledgeable family law attorney for assistance. An attorney that regularly works with prenuptial agreements will understand many of the nuances and potential pitfalls that are common, and will better ensure your agreement is valid and modifying provisions that may invalidate the agreement in the future. The legal requirements for a valid prenuptial agreement depend on the laws of individual states. Where your agreement is not executed matters. In Florida, for example, a prenuptial agreement must be executed before the marriage ceremony.

The Benefits of a Lawyer For Your Prenup

When it comes to preparing a prenuptial agreement there are many steps that need to be taken. In one of those steps, in some cases the law requires a lawyer to provide advice to the person who reviews the agreement. Preparing and reviewing these agreements is something that should be done by a lawyer from the start. There are attorneys who specialize in drafting these contracts and they are familiar with the current legal requirements.
In order for it to be considered binding, an agreement must adhere to certain regulations. Attorneys are well-versed in these laws. Not only can the contracted attorney help to prepare an enforceable contract, the attorney can also help determine whether or not it needs to be enforced.
In these types of agreements, disclosure is key. If a spouse hides information from the other spouse, the resulting contract can be void. An expert can help identify things that may be deliberately or inadvertently hidden. Without making a proper disclosure, each side will not be liable.
If your contract was prepared by someone who wasn’t an expert, it may be that the contract cannot be enforced because of an improper agreement. If a contract was made and reviewed before marriage, but an attorney was not involved in the process, it may be possible to go into court to get out of the contract.

Risks of Not Having a Lawyer

It is generally inadvisable to try to create a valid prenup on your own for many reasons, but the two biggest risks are: (1) that the agreement is invalid; and (2) that the agreement is not enforceable.
For a prenup to be invalid, it must fail at least one of several tests. Most commonly, a seeming prenup will be invalid from the start if one party was never legally married to the other party. The document might also be considered invalid if one party signs the document under duress. In such a situation, the person who was forced to sign the document will not have made the agreement voluntarily. A prenup also might be considered invalid if the parties fail to provide full disclosure of their assets to one another. It is also possible that an agreement will be considered void if it is signed by one party on the condition that he or she will not be heard in the event of the party’s death or divorce. If a marriage or remarriage is attempted to be conditioned upon a prenuptial agreement, it may likely be void as a matter of law.
There are also numerous situations in which an otherwise valid agreement may be unenforceable, the most common being when the terms of the agreement are patently unfair to one party. Even an otherwise valid contract can be ruled not enforceable if it is unconscionable. For example, some courts have ruled that premarital agreements that would require a spouse to pay alimony regardless of the circumstances or would require a spouse to accept for herself only the minimum amount of property required by the laws of a particular state are not enforceable.
A prenuptial agreement may also be found to be not enforceable if it has not been updated or amended in many years. Because the lives of parties get busy, many neglect to renew their agreements after they have been in effect for several years. Particularly when new children are born, property is acquired, or major economic changes occur, parties with existing prenuptial agreements should consider whether they need to create newer amendments or updated agreements. If you do not regularly amend your prenuptial agreement or obtain new prenups that address your changing life circumstances, a court may find that the original prenup is no longer valid or not enforceable.

How to Select a Lawyer for Your Prenup

Here are a few tips to consider when researching potential lawyers for handling a prenuptial agreement:
Experience: It is best to have a lawyer specializing in family law and who has considerable experience preparing prenuptial agreements. For example, you may want to ask how many such agreements the lawyer has drafted in the past year and whether they have any experience with litigation involving prenuptial agreements. You also may want to know if the lawyer is a member of the American Academy of Matrimonial Lawyers (AAML), a national organization of leading lawyers practicing family law in the United States. Membership in this prestigious organization requires its members to demonstrate significant trial experience , a high level of professionalism and substantive knowledge of the law.
Specialization: Lawyers specializing exclusively in family law are likely to have a greater understanding of prenuptial agreements as well as the manner in which they can be enforced or challenged. An attorney concentrated in another practice area such as estates or business transactions may not be familiar with nuances of a prenuptial agreement.
Reviews: To see how prior clients have rated their experience with the lawyer, searching online for reviews is always a good option. Local directories such as Yelp.com, Martindale.com, Lawyer.com, and Avvo.com, will typically contain client reviews, ratings, peer endorsements and/or disciplinary actions, which can help guide your decision on which attorney to choose.

Prenup Legal Fees

When it comes to the cost of drafting a prenuptial agreement, it depends who you ask. First, there is the cost of the individual lawyers that will be consulted individually by each party prior to entering into the prenuptial agreement. Second, there is the cost of the mediator or hybrid attorney/mediator that will conduct the negotiations and prepare the agreement. Third, there is the cost of the notary public, which is required for the execution of the prenuptial agreement. So what are the costs?
Independent Lawyers. If you retain an attorney on an independent basis, the fees may range from $250 to $500 per hour. A more costly fee, even on a fixed fee basis, may seem high if the prenuptial agreement is quite simple with no significant assets at the time the agreement will be executed. However, it is also costly if the prenuptial agreement is complicated and involves complex issues. Simple prenuptial agreements with few assets or complex agreements with multiple assets may be more expensive if the agreement is prepared or negotiated on an hourly basis.
Mediator or Hybrid Attorney/Mediator. A hybrid attorney/mediator may charge between $500 and $1,000 per hour. However, the cost is quite low if the parties require simple advice to draft a prenuptial agreement.
Notary Public. A notary public is usually available free of charge if you request the notary at a bank or an attorney’s office. There is a fee for a notary public that provides this service elsewhere.
Down the road, the costs associated with litigating the prenuptial agreement can be enormous, especially if the parties have a protracted legal battle seeking to obtain the benefits of the prenuptial agreement.

Other Options for Resolving Alternative Disputes

An increasingly common practice is to include a mandatory arbitration clause in a prenuptial agreement. In the event the parties have a disagreement over the meaning, enforceability, or validity of the prenuptial agreement, they first must attempt to mediate their dispute. The parties are required to attend two four-hour mediation sessions with a qualified mediator. If, after two sessions, the dispute cannot be resolved, the matter is submitted to binding arbitration.
It is important that the arbitration clauses be drafted with specific, agreed-to ground rules, including issues related to the number of witnesses each party may call, how the examination of the witnesses will proceed, and whether the arbitration is to be recorded. The arbitrator then makes a decision over the matter, and because the parties have agreed to the arbitration, the arbitrator’s determination generally cannot be challenged.

Conclusion: Decide What’s Best For You

Your prenuptial agreement will be an important part of your life and estate plan for years to come. As such, you should make an informed decision as to whether or not you need an attorney’s assistance with drafting your prenuptial agreement. Remember that it is always better to have an attorney go over the document with you as opposed to being completely on your own. An attorney can give you advice about the agreement , including what your options are for handling it, and also help you if your spouse has significant concerns about the terms of the agreement. In the end, the decision as to whether or not you should work with an attorney to draft your prenuptial agreement depends on which approach best fits your situation.