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Prenups & Postnups: Do both of you really need your own attorney?

By: David R. Hartwig
May 18, 2017

When you are looking at, or preparing a prenuptial agreement, or a postnuptial agreement do you and the other person really need your own independent attorneys? Isn't is okay to just use the husband's, or wife's, attorney and leave it at that?

The answer depends on what you want from the agreement. Do you want the agreement to be as enforceable as possible if a divorce occurs? Or, do you want to be able to easily challenge the agreement, thereby having a good chance at getting out of it if a divorce happens?

One of the corner stones in enforcing either of these agreements is making everything an arms-length transaction; an agreement between equal minds of strangers, without all the "love" and "expectation" associated with a couple about to get married, or who already are married. And the best way to create such an arms-length transaction is to ensure that both parties are represented by their own independent counsel.

If you don't do that, then when the divorce hits the fan the unrepresented party can claim that he or she was misled by the represented party (or that person's counsel); that he or she relied on some other promises, or representations that were not part of the agreement; that he or she was lied to in order to get that person to sign the agreement; or that he or she was coerced, or forced under some threat (like refusing to marry if the agreement is not signed) into signing the agreement.

And then, the agreement will be in issue, and could easily be thrown out by the judge.

So, what do you want? A piece of paper that is going to cause litigation and fighting, or your best chance and avoiding all of that? If the later, make sure that both of you are represented by independent counsel.

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