Can one attorney represent both members of a couple in a prenuptial or postnuptial agreement?

Generally, no. Similar to a divorce, the parties have inherently conflicting legal rights and interests. One lawyer cannot ethically be an advocate for both parties and simultaneously represent one against the other. Each party is encouraged to have independent legal counsel to ensure fairness and avoid conflicts of interest. If one party chooses not to have legal counsel, they may do so, as long as it’s clear the lawyer representing the other party and drafting the agreement only represents the interests of that party.

What is the difference between a prenuptial and a postnuptial agreement?

Both outline how assets and responsibilities will be handled, but timing and legal considerations differ.

  • A prenuptial agreement is created before marriage. The act of getting married is the “consideration” (value) each member of the couple gives the other in exchange for giving up certain property rights in the event the marriage ends, either in divorce or by death. Therefore, a prenuptial agreement must be completed and signed before the date of the marriage.
  • A postnuptial agreement is created after marriage. Because marriage has already occurred, the “consideration” (value) must be something with monetary value each member of the couple gives the other in exchange for giving up property rights at divorce or death. A postnuptial agreement will not be enforceable if made in anticipation of divorce.