Can a Lawyer Make Their Own Prenup?

Posted By admin, Uncategorized On September 1, 2020

Definition of a Prenup

A prenuptial (aka antenuptial, premarital) agreement, more affectionately known as a prenup,  is a written agreement between two people who are engaged to wed.  

Can a Lawyer Make Their Own Prenup?

Indeed, anyone can represent themselves in court.  All the better if the person representing themselves is a lawyer, and better still if the matter is within his practice.  The same goes for an attorney creating their own prenup.  That said, an attorney would be more sensitive than anyone to the question of whether he or she should biring in counsel to do it for them.  For example, if the lawyer in question specializes in employment law, they would wisely opt to hire a prenup lawyer or a family law attorney to make their prenup.  

Prenups in California are Sometimes Divergent from Marriage and divorce Laws

Family law in the Golden State covers the respective rights and obligations of married people. Nevertheless, there are marital rights that can be renegotiated and modified by an agreement. Spouses can make decisions in advance as to the terms of their property shares in marriage or, if it should end up there, divorce.  

Terms can, for the eventuality of the untimely demise of a spouse, also be delineated in the contract. 

For sure, prenups in California are sometimes divergent from marriage and divorce laws. Agreed upon stipulations can differ from the default procedure under the state law.  

How Can I Be Certain That My Prenup is Valid?

The three basic things that the validity a prenuptial agreement relies on are: 

  1. The agreement needs to be in writing, 
  2. It has to be signed by both spouses
  3. The prenup is only valid after the date of marriage.

In the event that the marriage is annulled at some point, your prenup is in peril of being  impossible to enforce, or the possibility of enforcement may be remote at best.
Notably, the special, intimate kinship between husbands and wives means that any talk of prenups can potentially raise a suspicion of undue influence. This presumption may be advantageous to either person who may later want to question the validity of the prenup in a court of law.

The California Family Code addresses this by stipulating that that the intimate, fiduciary relationship between wives and their husbands “imposes a duty of the highest good faith and fair dealing on each spouse.” 

Family court judges are empowered to impose penalties for any violation of fiduciary obligation by, for example, awarding the whole value of an undisclosed asset to the spouse that was deceived about it. 


The Limitations of Prenups in the Golden State

There are several critical limitations to the authority of prenups in California:

  • The Family Code provides that “[t]he right of a child to support may not be adversely affected by a premarital agreement.” 
  • A judge will be wary of enforcing clauses in the agreement that reduce or interdict spousal support if the spouse whose rights have been compromised had the chance to get their own legal representation at the time they signed.
  • If the courts decide that a waiver of spousal support is unconscionable, they can decide not to uphold the prenup and award support. 
  • Any agreement that obligates the future spouses to commit crimes or otherwise violate laws or public policy cannot be valid. 
  • Certain lifestyle clauses, such as those placing limits on visits from in-laws or dictating the details of sexual relations usually cannot be enforced by courts.

How to Make a Prenup Without a Lawyer

Again, it is possible to create a prenuptial agreement without a lawyer.  There are templates available that you can access cheaply.  What becomes a concern is whether or not you make a prenup that can be enforced under the laws of the jurisdiction you’re in. 

The basic requirements of a contract are as follows: 

  1. promises, 
  2. consideration, 
  3. and signature
  4. witness or notary in some states. 

Bear in mind that jurisdictions have different statutory and case law regarding to what is and is not permissible in a prenup, and only an experienced attorney would know and understand what these are to guide you.