Does each party need a separate attorney?
One attorney cannot represent both parties to a premarital agreement. The parties' interests are adverse by definition, and for certain terms California law makes independent representation a condition of enforceability.
Why one attorney cannot do both
A premarital agreement allocates rights between two people whose financial interests diverge. A provision that protects one party's separate property is a provision the other party is giving something up to accept. That is an adverse relationship, and it is not one lawyer's to hold on both sides.
The attorney who prepares the agreement represents the party who retained them. The other party is entitled to their own lawyer, and in practice should have one whether or not the statute requires it in the particular case.
Where independent counsel is required
California Family Code section 1612 provides that a provision regarding spousal support is not enforceable if the party against whom enforcement is sought was not represented by independent counsel at the time the agreement was signed. This requirement cannot be waived.
Section 1615 separately addresses representation as part of the enforceability framework. A party who was not represented by independent counsel must have been advised in writing to seek independent counsel and must have expressly waived that representation in a separate signed writing.
The practical consequence is significant. If the agreement addresses spousal support at all — and most substantial agreements do — the party accepting the limitation needs their own attorney for that provision to hold.
What independent review actually involves
Independent counsel is not a signature on a certificate. The reviewing attorney reads the agreement against the default rules that would otherwise apply, identifies what the client is giving up, and explains the practical effect of each provision.
- Reviewing the agreement and all attached disclosures
- Identifying omitted assets or unclear descriptions
- Comparing proposed terms against California's default rules
- Analyzing property and support waivers
- Preparing written revisions or a counterproposal
- Negotiating directly with the drafting attorney
A client who receives a proposed agreement should obtain that review promptly rather than near the signing date, so that revisions remain possible.
This article provides general information about California law and does not constitute legal advice. Every matter depends on its own facts. Consult an attorney about your circumstances.