Is an Attorney Needed to Get a Prenuptial Agreement?

Unsurprisingly, many of the search terms that bring potential prenuptial agreement clients to my website are related to cost:

  • How much does a prenuptial agreement cost?
  • How much do prenuptial agreement attorneys cost?
  • Is an attorney required to review a prenuptial agreement in Massachusetts?

The last question isn't directly about cost, but I believe it comes from a desire to avoid unnecessary expenses. If an attorney isn't required to get a prenuptial agreement, then why hire one?

Prenuptial agreement requirements versus best practices

Strictly speaking, you do not have to hire an attorney to review your prenuptial agreement. You could hire only a mediator and still come away with a preumptively valid and enforceable agreement.

But that is only part of the equation.

At the end of the day, you want your prenuptial agreement to be as unassailable as possible. If somebody were to challenge its validity down the road, you want to have done everything you can to ensure that the challenge will fail. Based on the case law in Massachusetts, those best practices include:

  • Making full and accurate financial disclosures;
  • Preparing and signing the prenuptial agreement as far in advance of the marriage as possible; and
  • Hiring independent counsel.

Hiring independent counsel is important because it shows that you received independent legal advice about any rights you might be waiving by signing the agreement. This will help to cut off any allegations that you did not understand what you were signing.

Pay a little more now, or a lot more later

Hiring independent legal counsel in addition to a mediator does cost more, but not very much more. You might end up paying the lawyer for a few hours of his or her time. Compare that with the tremendous expense of litigation, if your prenuptial agreement were to be challenged down the road. Given all the benefits of having a valid and enforceable prenuptial agreement (see my prior blog posts here and here), the added up-front cost seems more than warranted. This is not an area where you want to be cutting corners.

But hire your attorney carefully

If you have prepared your prenuptial agreement through a mediator, one way to reduce the cost of your independent legal counsel is for both you and your spouse-to-be to hire mediation-friendly attorneys. These attorneys are more likely to respect the decisions you reached in mediation, rather than attempt to renegotiate the terms from scratch. Your mediator should be able to provide you with a list of mediation-friendly attorneys in your area.

It's up to you

Ultimately, whether you hire an attorney to review your prenuptial agreement is up to you. Independent legal advice is not strictly required to have a valid and enforceable prenuptial agreement in Massachusetts – but it is definitely a good idea!