Do You Need a Lawyer for a Prenup in California?
California does not impose a blanket rule that both parties must always have attorneys, but independent counsel can have major consequences for voluntariness, waivers, and spousal-support provisions.
California does not require two lawyers in every case
A California premarital agreement is not automatically invalid merely because one party did not have a lawyer. However, Family Code § 1615 contains detailed rules concerning representation, written waivers, explanation of rights, and voluntariness.
Independent counsel provides more than document review
A reviewing attorney can explain the rights being changed or waived, identify unclear or one-sided provisions, evaluate financial disclosure, negotiate revisions, and help document a deliberate signing process.
Spousal-support provisions are different
California Family Code § 1612(c) provides that a spousal-support provision is not enforceable against a party who was not represented by independent counsel when the agreement containing that provision was signed. Support provisions also remain subject to unconscionability review at the time enforcement is sought.
Can one attorney represent both parties?
One attorney generally should not advise both parties on the same prenup because the parties may have different legal interests. Even when they agree on the overall goals, each person may be giving up different rights.
Who pays the second lawyer?
The parties can sometimes agree that one person will contribute toward the other person’s attorney fees. Payment does not change the lawyer’s duty of loyalty to that lawyer’s own client.
Frequently asked questions
Can I sign a California prenup without an attorney?
Possibly, depending on the circumstances and provisions. But California has detailed statutory safeguards, and proceeding without counsel can materially affect enforceability.
Can the same lawyer draft for both of us?
A lawyer drafting for one party is not a neutral lawyer for both parties. Separate legal advice is generally the cleaner process.
Is independent counsel required for a spousal-support waiver?
California law specifically restricts enforcement of spousal-support provisions against an unrepresented party. California counsel should review the proposed provision.
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