Why Hiring Two Lawyers Produces Better Postnuptial Agreements

Yes, spouses really should hire two lawyers when they enter a postnuptial agreement. This is true even when both spouses want to enter the agreement and when they agree on all terms. For purposes of the postnuptial agreement, the spouses are separate parties with separate rights and obligations. It may not be necessary to have two lawyers for the entire process. A couple may successfully negotiate the postnuptial agreement through marital mediation. However, at minimum, each spouse should have a separate lawyer review the document before signing it.

When determining the validity of a postnuptial agreement, courts consider whether lawyers were involved. Courts cannot force anyone to hire a lawyer.  However, in order for a postnuptial agreement to be upheld, courts do require that both spouses are given the opportunity to hire independent counsel. (In some states, and under some circumstances, it may be a requirement.) There is a concern that one spouse could take advantage of another spouse in a postnuptial agreement. As a result, courts are skeptical of agreements that were not reviewed by two lawyers, especially if the agreement appears unfair or unreasonable to a spouse that did not have separate counsel.

When people get married, the law automatically grants certain rights and attaches certain obligations. A postnuptial agreement is a private contract that changes those rights and obligations. Sometimes it is by waiver, meaning a spouse completely give up one or more rights. Other times a spouse may agree to a limitation of a particular right. A spouse may also agree to assume more obligations than the law requires.

In order to modify rights and obligations by entering a postnuptial agreement, spouses must first know what rights and obligations the law mandates. Typically, this is accomplished by meeting with a lawyer who can provide that information.  Also, postnuptial agreements can be complex. It is important that both spouses understand everything in the agreement. This is ensured when spouses have lawyers who explain both the law and the agreement itself. Courts will only uphold postnuptial agreements when both spouses know what their rights are and what effect signing the agreement has on those rights.

Another reason to use “reviewing attorneys” is that they can actually improve on the final product by asking questions, finding issues in the agreement which have not been addressed or that need to be “tweaked”.

Each party to a postnuptial agreement will need to consult with a separate attorney, as one attorney cannot represent two clients in a postnuptial agreement.  (The same holds true for a prenuptial agreement, and a divorce agreement.)  This is because there are two sets of rights involved in a postnuptial agreement.  When each spouse has independent counsel, the agreement is more likely to be upheld by a court. Separate lawyers can more effectively protect each spouse’s rights. It might be more money, but that’s better than the agreement being declared worthless if the court finds that a spouse’s rights were not adequately safeguarded.

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  • […] court, both spouses should provide a full financial disclosure and have the opportunity to consult with separate lawyers. However, the best way to guard against invalidation of your postnuptial agreement is to provide […]

  • By Finding a marital mediator | Marital Mediation on August 19, 2011 at 11:19 pm

    […] Discuss the use of outside reviewing counsel with your marital mediator. Mediators are permitted to provide legal information, but cannot (even if they are attorneys) provide legal advice to their mediation clients. If a postnuptial agreement is being formulated in the context of the marital mediation, and if it is one that affects marital (or inheritance) rights, it is very important to have outside counsel to advise each of the spouses separately. […]