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

Previously, I had discussed why both person must have his or her own attorney when signing a prenuptial agreement, as well as what the job of a drafting attorney is.  Now, I will discuss what exactly the reviewing attorney does.  This discussion may be the most important of all three, since the information is often the least obvious to nonlawyers.

Often, when potential clients call me to ask me to review a prenuptial agreement, they are surprised by the cost associated with that review.  This is usually because they think the job of a reviewing attorney is merely to read the agreement, explain it to the other person, and have that person sign the agreement.  This is absolutely not the job of a reviewing attorney, and if your attorney tells you otherwise, I would highly recommend looking for someone else to do the job.

Though the reviewing attorney is not responsible for initially drafting the agreement, his job is essentially identical to that of the drafting attorney.  The only difference between the role of these two attorneys is the task of writing the initial agreement.  A reviewing attorney should speak with his client to gain an understanding of the parties’ goals in entering the agreement, advise his client about the legal rights and obligations being gained or lost, the consequences of those gains and losses, and what the client should consider when weighing the costs and benefits of gaining or losing those rights.  He should also advise his client as to what can or cannot be accomplished through a prenuptial agreement.

Once the reviewing attorney understands his client’s expectations, he will review the initial agreement to make sure that the provisions of that agreement accomplish these goals.  This is a review not just of whether the legal language is clear and correct, but that the parties’ understandings of their goals is the same.  For instance, the parties might agree that each person should be required to contribute money to the household, but they may disagree about the fair way to apportion these costs. That is a different issue than a provision not accurately reflecting a means of apportionment the parties have already agreed to.  The reviewing attorney will look out for both types of mistakes or disagreements and make edits to the initial agreement as necessary, then send that draft along with a “schedule” of his client’s assets and liabilities and supporting documents to the drafting attorney.  The two attorneys may go back and forth multiple times, depending on their clients, to make sure that the agreement is fair, reasonable, clear, and enforceable.

Only once both clients are satisfied with the terms, based on the advice and information they receive from their lawyer, should a prenuptial agreement be signed.  It is essential that each person have the benefit of such advice and information in order to assure that your prenuptial agreement is enforceable under Massachusetts law.

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