Can one attorney represent both parties in a prenup?

Just like in any healthy, normal relationship where it takes 2 people to make it work – when a prenup is drafted, there should be 2 attorneys.  One attorney represents one party and the other attorney represents the other soon-to-be-spouse.

In addition to drafting prenuptial agreements, I also handle a lot of divorce cases.  I’ve seen and also heard of so many prenuptial agreements where the husband had an attorney and the wife did not.  When I ask the husband if his attorney ever advised them to have separate counsel, he says “no”. Now, I don’t know if this is true or not.  Maybe the husband is lying or simply forgot.  Either way, it doesn’t matter because chances are, their prenup is invalid.

As a rule, I will not draft a prenuptial agreement for a couple without another attorney on the other side.  I don’t care if the other person waives their right to an attorney because I don’t believe that right is waivable.  Down the road, if this prenup is actually needed, I can bet you that even if they had waived their right to an attorney, they’re now going to say they didn’t.  They’re going to say they were coerced into signing something they didn’t understand.  And where do we end up at that point?  We end up with an invalid prenuptial agreement, pissed off client, and possibly a malpractice claim against the attorney who drafted the prenup.

It’s a lose-lose for everyone.

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