Can You Get a Prenup With 1 Lawyer?

Posted By admin, Uncategorized On September 1, 2020

A Bit of Background About Prenups

Even though prenups, also referred to as antenuptial or premarital agreements, only became hot in the US during the 80s, historians have said that even the ancient Romans had them. 

A prenuptial agreement is a contract signed by both fiances who are engaged to marry.

The family code statutes related to marriage describe the legal rights and obligations of domestic partners and spouses. Some of these rights can actually be renegotiated and re-engineered in an agreement. Terms can even be put in place for the eventuality of the untimely passing of a spouse. 

If these are things one or both individuals in the engagement want to achieve, then a prenup is a great option.

Can You Get a Prenup With 1 Lawyer?

If you are on the receiving end of a prenuptial agreement, then having your own legal counsel to represent you at signing is critical.  

A 2018 article in Forbes Magazine describing the uncharacteristically clandestine nuptials of Justin Beiber and Hailey Baldwin advises you to “Get your own counsel. Justin and Hailey should each have their own attorneys to represent them regarding the prenuptial agreement.” In fact, some states require that both parties have a lawyer for a prenup. So in answer to the question, you can get a prenup with 1 lawyer, but it is not a wise way to go.

Enforcing a Prenup That was Signed by an Unrepresented Spouse

The issue of whether a signature on a prenup was truly voluntary may come up when it needs to be enforced.  In such a scenario, a judge would inquire if the party who was presented with the prenup was given time to consult with their own attorney, or if they waived their right to have an attorney in writing.

Said party must have been granted a minimum of seven days according to the California code to speak with an attorney before signing. For example, perhaps Richard has no lawyer representing him at signing.  If he signed the prenup anyway, he must be able to present a clear and correct explanation of what’s in the contract to show that he understood what he was signing.

Although neither party is legally required to have counsel, courts tend to be less willing to enforce a prenup signed by an unrepresented spouse. Under such circumstances, especially if the prenup looks to be disproportionate against the party that lacked representation or if there are questions about coercion or duress, a judge might invalidate the prenup completely.

The Marital Fiduciary Obligation

For a prenup to be deemed valid, it must be a written contract and be signed by both parties in the marriage.  It is worth noting that due to the unique and intimate connection between husbands and wives, the very existence of a prenup can create suspicions of undue influence.

The law dictates that the intimate, fiduciary relationship between married persons “imposes a duty of the highest good faith and fair dealing on each spouse.” Family courts are authorized to levy penalties against violators of this marital fiduciary obligation. 

Bear in mind that  there is no fiduciary relationship between fiances. Therefore, the presumption of undue influence would not apply until after the wedding.

The Authority of a Prenup in the state of California

Some key limits to the authority of a prenup:

  • Children’s right to get support cannot be negatively affected by a prenuptial agreement
  • If the agreement has language obligating one or both signers to commit crimes or otherwise break laws or policies, it is invalid. 
  • A judge will only enforce clauses that reduce spousal support below what the law stipulates if the affected spouse had time to get legal representation at signing.
  • If the courts determine that a waiver of spousal support in the prenup is unconscionable, they are authorized not to enforce the clause and award support. 
  • So-called lifestyle clauses, like clauses imposing restrictions on sex, generally can’t be enforced by courts.

The Uniform Premarital Agreement Act

For a comprehensive list of the applicable statutes regarding prenups in California, please see The Uniform Premarital Agreement Act.