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.
One attorney cannot represent both parties to a California prenuptial agreement, because their financial interests are adverse, and separate counsel for each party is strongly advisable. For spousal support provisions it is mandatory: under California Family Code section 1612, such a provision is unenforceable against a party who was not represented by independent counsel, and that requirement cannot be waived. For other terms, a party may proceed without counsel only if advised in writing to seek independent counsel and the party expressly waives representation in a separate signed writing.
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.
Primary sources
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.
Frequently asked questions
Can one attorney write a prenup for both people?
No. The parties' interests are adverse, so one attorney cannot represent both. The attorney who prepares the agreement represents the party who retained them, and the other party is entitled to separate counsel.
Is independent counsel required for a California prenup?
For a spousal support provision, yes — California Family Code section 1612 makes independent representation a condition of enforceability, and it cannot be waived. For other terms, a party who is unrepresented must have been advised in writing to seek counsel and must have waived representation in a separate signed writing.
What does a prenup review attorney actually do?
The reviewing attorney compares the proposed terms against the California default rules that would otherwise apply, identifies what the client is giving up, checks the financial disclosures for omissions, prepares written revisions, and negotiates with the drafting attorney.