Why do we both need attorneys when drafting a prenuptial agreement? (Part I)

Many people are surprised to learn that if you want to sign a valid prenuptial agreement in Massachusetts, each person needs to have his or her own attorney.  The need for two attorneys seems counter intuitive, because you and your future spouse think of drafting your prenuptial agreement as a cooperative process rather than an adversarial one.  While I can’t stress the importance of finding two attorneys who share this view of the process, it is equally important to remember that how the law approaches something and the commonsense approach to something aren’t always the same.

As I’ve said in the past, it is important to find attorneys who will keep in mind that a prenuptial agreement is a cooperative rather than adversarial negotiation process.  It’s equally important, however, to remember that while a prenuptial agreement can be mutually beneficial to all parties, the interests of each future spouse are in direct conflict with one another.  Each benefit gained by the prenuptial agreement is the direct result of the other person giving up a legal right he or she would otherwise have.  I am of the opinion that a person should always seek information and advice from an attorney before giving up a legal right, and when it comes to prenuptial agreements, the Commonwealth of Massachusetts agrees with me.

In order for a prenuptial agreement to be enforceable, it must have been fairly and reasonably negotiated and contain provisions that were fair and reasonable based on the circumstances at the time it was signed.  The need for two attorneys stems from both of these requirements, but is based mainly on the first one:  there is nothing fair or reasonable about one person having an attorney to advocate on his or her behalf while the other person does not have the same.

You may be asking why one attorney can’t fulfill this function for both people involved.  The simple answer is that attorneys are prohibited from doing this.  The ethical rules that govern the conduct of attorneys do not allow one attorney to advocate for both sides.  The more complicated answer is the policy underlying this rule: it is impossible for someone to truly advocate for both sides.  The job of an attorney is not to balance the interests of two people, but to represent the best interests of one person.  These are two very different things, and if the end goal is to find a compromise that benefits both people, the best way to do so is to have each person be represented by someone who understands the law and who has that individual’s best interest in mind.

So what does each attorney do in negotiating a prenuptial agreement? Stay tuned for Part II.

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