Do both people need their own lawyer for a California prenuptial agreement?

The question is asked as yes or no, and the answer is neither

Two people about to marry ask whether they both need lawyers, expecting to be told yes, or told that one will do. Neither is right.

One lawyer certainly cannot act for both of you. Beyond that, whether the second person actually retains anybody is a choice, with consequences that differ depending on what the agreement contains and which of you is later trying to rely on it.

What follows sets out who the condition attaches to, what happens if the second person does not retain anyone, and the one term where there is no alternative.

This office acts for one party only. The other party is free to retain any California lawyer they choose, and this office will not advise them.

Why one lawyer cannot act for both of you

This is the part people find hardest, because it feels like an upsell. It is not.

The two of you are agreeing with each other about money. Advising one of you properly means advising them about what they are getting and what they are giving up relative to the other. There is no way to do that for both sides at once, because the advice pulls in opposite directions.

It is not a question of goodwill. A couple can be entirely aligned, want exactly the same thing, and still be on opposite sides of the document they are signing.

So the shape is always the same. One of you instructs a lawyer, that lawyer prepares the agreement and acts for that person alone, and the other is advised in writing to get their own.

This office acts for one party only. The other party is free to retain any California lawyer they choose, and this office will not advise them.

Who the condition actually attaches to

Here is the part almost every summary gets slightly wrong. The requirement is not that both parties be represented. It is framed around the party against whom the agreement is later asserted.

In practice that means the person who wanted the agreement is rarely the one whose representation is in question. It is the other person, the one being asked to sign, whose position gets examined.

That is worth understanding whichever side you are on. If you are commissioning the agreement, the other person having their own lawyer is protection for you, not a cost imposed on you. If you are being asked to sign, it is a right that belongs to you and nobody else can exercise it for you.

A premarital agreement is not treated as signed voluntarily unless the party against whom it is later asserted was represented by their own independent lawyer when they signed, or was advised to seek one and expressly waived that right in a separate signed writing. Fam. Code, § 1615, subd. (c)(1)

The route for a party who will not retain anyone

Plenty of people decide they do not want their own lawyer. The reasons are usually cost, or a feeling that involving lawyers makes the whole thing adversarial.

There is a defined path for that, and it is not simply signing without advice. The party has to be advised, in writing, to seek their own independent counsel, and then to give up that right expressly, in a separate writing rather than by a line buried in the agreement.

A second requirement attaches to the advice itself: it has to come far enough ahead of signing that the person had a real chance to act on it. Somebody told to get a lawyer and asked to waive that right the same afternoon has not had that chance, whatever the paperwork records.

A premarital agreement is not treated as signed voluntarily unless the party against whom it is later asserted was represented by their own independent lawyer when they signed, or was advised to seek one and expressly waived that right in a separate signed writing. Fam. Code, § 1615, subd. (c)(1)

Where a party is advised to seek their own lawyer rather than retaining one, that advice must be given at least seven calendar days before the final agreement is signed. Fam. Code, § 1615, subd. (c)(1)

What an unrepresented party must be given

Signing without a lawyer is not signing without protection, and what the protections require is specific.

The party has to be informed in writing of the terms and the basic effect of the agreement, and of the rights and obligations they are giving up by signing it. That second half is the part that gets missed: a clause-by-clause summary is not the same as an explanation of what you are losing.

They must be proficient in the language the explanation is written in, and in the language the agreement itself is written in. Those are two separate requirements and it is possible to satisfy one and miss the other.

And they sign a declaration confirming they received the information, which names who provided it.

A party who signs without their own lawyer must be given a written explanation of the terms and basic effect of the agreement and of the rights and obligations they are giving up by signing it, must be proficient both in the language of that explanation and in the language the agreement is written in, and must sign a declaration saying they received that information and naming who gave it to them. Fam. Code, § 1615, subd. (c)(3)

The one term where there is no alternative

Everything above describes a choice. For one kind of clause there is no choice at all.

For a term about spousal support, the party it is used against has to have had their own independent lawyer when they signed. No waiver substitutes. Being advised to get a lawyer, and properly giving that up, satisfies the general condition and does nothing for this one.

So an agreement containing a support term and an unrepresented other party contains a clause that is exposed from the day it is signed. The choice is to take out the support term or for the other party to retain somebody.

And representation is not the end of it either, because a support term is looked at again when somebody tries to use it. The spousal support page sets that out.

A term about spousal support is not enforceable against a party who was not represented by their own independent lawyer when the agreement was signed. Fam. Code, § 1612, subd. (c)

A spousal support term that is otherwise unenforceable does not become enforceable just because the party it is asserted against had their own independent lawyer. Fam. Code, § 1612, subd. (c)

What the second lawyer actually does

People imagine a lawyer on the other side means a negotiation, a fight, and a bill without a ceiling. Usually it is none of those.

The work is reading the agreement against that person’s own position and telling them what it does to them. Frequently that produces questions rather than counter-proposals, and the questions are ones the first lawyer cannot ask because they are not acting for that person.

Sometimes it does produce changes, and the agreement that is signed is not the one that went out. That is the process working. An agreement both sides understood is worth more than one signed quickly.

A narrower engagement exists for people who want advice rather than representation in a negotiation: someone reads it with you and advises you, at a flat fee, and that has its own page.

Where you have been given an agreement drafted by someone else’s lawyer, this office acts as your own lawyer: a written review of what the agreement does to you, advice on your rights including any spousal support, the earliest date you should sign, and a certificate for your records confirming that this office reviewed the agreement with you.

Cost, and the argument people actually have

The reluctance to retain a second lawyer is nearly always about money, and it is worth being blunt about the numbers rather than pretending the objection is unreasonable.

A review engagement is a fraction of the cost of arguing about an agreement afterwards, and a small fraction of what a contested dissolution costs where there is no agreement at all. But that is a comparison against a future nobody believes will happen, which is why it rarely persuades.

The better argument is the narrower one. The party being asked to sign is being asked to accept something without knowing what it is worth to them. An hour of somebody’s time telling them is not a luxury, and it is the only way the signature means what everybody wants it to mean.

Where cost is genuinely the obstacle, a flat-fee review exists precisely because open-ended hourly engagements put people off.

Timing, because a lawyer takes time to find

Retaining somebody is not instant. Finding a name, reaching them, arranging a conversation, and giving them time with the document takes longer than couples allow for, and it all has to happen between the agreement being served and the day anybody can sign.

There are two periods before signing, they start on different events, and the later of them governs. Where the other party is going to find their own lawyer, the practical constraint is usually not the period at all but how long that search takes.

The page on the seven day rule has a calculator that works backwards from a wedding date and states what it assumes.

On an agreement signed on or after 1 January 2020, at least seven calendar days must pass between the day a party is first given the final agreement and the day that party signs it, whether or not that party has a lawyer. Fam. Code, § 1615, subd. (c)(2)(B)

What this office will not do

It will not recommend a lawyer to the other party. Recommending somebody to the person on the other side of your own client’s agreement puts this office in a position it should not be in, and it taints the independence that makes their advice worth having.

It will not pay for one, or share a fee with one, or receive anything from one.

Where a list of attorneys who have told this office they offer flat-fee review is available, it is given to the other party as a list and nothing more. They are free to use it, ignore it, or find somebody themselves.

This office acts for one party only. The other party is free to retain any California lawyer they choose, and this office will not advise them.

How this office records it

Whether the other party retained someone or gave up the right, the record has to show which, and when.

Where they retain a lawyer, that lawyer confirms it by certificate, recorded against the matter with their name, their bar number and the date.

Where they waive, the written advice and the separate waiver are both stored, each with the instant it was delivered or signed, along with the written explanation and the declaration naming who provided it.

The portal will not open a signing session for a party until whichever of those applies is complete. There is no route past it, which is the point: the record exists because it was made at the time, not because somebody assembled it afterwards.

A premarital agreement is not enforceable against a party who did not sign it voluntarily, and the statute sets out what a court must find before it treats a signature as voluntary. Fam. Code, § 1615, subds. (a)(1), (c)

If the other party simply refuses

It happens. Somebody will not retain a lawyer, will not sign a waiver, and will not engage.

That is not a problem to be drafted around. An agreement pushed through against that is the one most likely to be argued about, and the argument is winnable by the person who refused.

The honest answers are to wait, to change what the agreement contains so the reluctance falls away, or to accept that this is not going to happen before the wedding and consider an agreement afterwards instead, which is a different document under different law.

What this office will not do is proceed quietly and let a client believe they have something they do not.

An agreement made after the wedding is not a premarital agreement, and the Uniform Premarital Agreement Act does not govern it. Fam. Code, § 1600 et seq.; Fam. Code, § 1610, subd. (a)

What it costs, on this side

This office charges a flat fee, quoted before anything begins, covering its own client only. The other party’s lawyer is retained and paid by them.

That is worth saying plainly because couples frequently budget for one number and are surprised by a second. The second is not this office’s fee and this office has no say in it.

Couples sometimes ask whether one of them can pay for the other’s lawyer. They can, and it is common: what matters is that the lawyer acts for the person they are advising and takes instructions from them alone, not from whoever settles the invoice. Where that arrangement is made, it should be recorded rather than left as an understanding.

This office quotes a flat fee before any work begins, and the written fee agreement states what it covers, when each part is earned, and your right to a refund of anything not earned.