Shared Lawyer For Prenup

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Can my fiancé and I just use the same lawyer for our prenup?

So the short answer is no, you and your fiancé cannot be represented by the same lawyer for your prenup. By law, an attorney can only represent one party in a prenup or a postnup. And in some jurisdictions like California, both spouses have to be represented by an attorney if you’re addressing all financial issues on the table.

That said, this doesn’t mean that getting a prenup has to become an adversarial process or a battle of attorneys. And in fact, many couples don’t hire a second attorney when negotiating their prenup. In this video, I’m going to explain how to keep down costs and confusion when each spouse is represented, as well as some tips on how best to protect yourselves if you don’t plan to hire separate counsel.

1. Get educated and negotiate ahead of time.

• My first tip is to do most of your negotiations on the front end before you get to the lawyers so that you’re essentially just asking a lawyer to draft up what you and your fiance or spouse have already agreed to.
• Luckily, today there’s plenty of information you can find free online — including our website prenups.com — you can watch videos, listen to podcasts, and take our free video course 60 minutes to Marital Money Management that will give you a good framework for structuring your marital finances so that the lawyers job is translating that into an enforceable document.
• At a bare minimum, you and your fiancé should have shared a written list of all of your assets and debts with one another, you should know what assets and debts are going to belong to you separately and what categories of assets and debts will be considered marital. And ideally, you’ll know the basic structure of your bank accounts — are you going to do what I call “Inside Out” where all of your income gets deposited into a joint account and you each get an “allowance” that goes to your separate accounts for personal spending? Or will you do an “Outside In” arrangement where your income goes into separate accounts and you contribute to a joint account for marital expenses?

2. Share all information.

• There’s nothing that says that you have to keep what your attorney tells you a secret. The rule for separate attorneys is the same whether you’re in a highly contentious war for the ages, or whether you’re basically on the same page and just want a legal document prepared. The rule for attorney-client privilege means your attorney can’t go sharing what you tell him or her — it doesn’t prohibit you as the client from sharing what the plan is and everything the lawyer has told you. You can even ask your lawyer if you can waive your attorney-client privilege for the purpose of having your fiancé present to see what you’re asking for and have a little more security that there are no backroom dealings happening.
• This really should be a collaborative effort. Think about it — can you imagine pulling one over on your spouse in the prenup and they discover that a few years into the marriage? You can protect yourselves fully in a prenup without it involving underhanded negotiations. Ideally, this prenup benefits both you and your spouse, and importantly, your relationship. You and your fiancé should be able to be transparent about what you want out of the agreement with one another.

3. When in doubt, pay an attorney to at least review the agreement from your standpoint.

• I will never try to discourage someone from having separate counsel. I just know that some people aren’t going to get a second attorney for what they believe is a very straightforward agreement. There are very good reasons to have separate counsel, particularly if you have any complicated aspects of your situation. You don’t know what you don’t know — and often, an experienced attorney can point something out in a very short period of time that you might otherwise completely overlook. You can often hire an attorney for a couple of hours, one to review the document and another to tell you what it says, and then make the decision whether you need to hire the attorney to help with any additional negotiations.
• Know that you are the one in charge of the negotiation, not your attorney. Let your attorney know that you don’t want to be negotiating like this is an arms-length transaction where you can go scorched earth without any ramifications. This is the love of your life on the other side of this transaction. You want a lawyer that recognizes that yes you want all of the adequate protections, but your number one priority is that your marriage succeed. Don’t let a lawyer come into the moments before your wedding and make things worse. A good lawyer can tell you what to look out for but understand that you want a collaborative effort on the agreement.

Prioritize a successful and harmonious marriage by having separate attorneys review the agreement.