An increasing number of individuals are not considering the possibility of entering into a prenuptial agreement prior to entering a marriage. A prenuptial agreement can help resolve many issues for a party in case of a divorce.

From property and debt division, spousal maintenance and attorney’s fees, a prenuptial agreement can address a lot of issues. There is no doubt that if both parties enter into a prenuptial agreement, and the agreement is enforceable, this can simply a later divorce.

One important procedural step, however, is that both parties almost always must have separate legal counsel for a prenuptial agreement to be held valid. This means that the prospect husband and the prospective wife should have their own individual attorney.  The attorneys also have to be from separate law firms.

Many parties, however, are tempted to skip this important step. Some might consider having one attorney draw up the prenuptial agreement. They might believe that this is proper, that it can simply things or that it can save in legal fees. Some might even believe that one attorney can represent both parties, which is patently untrue due to conflict of interest rules.

Ultimately, separate counsel is critical to the later enforceability of a prenuptial agreement (i.e. premarital agreement).  Certainly, there are other important factors as well for a prenuptial agreement to be enforceable. For example, there cannot be undue influence, duress or coercion. There also needs to be a full and fair disclosure of assets and debts of the parties coming into the marriage.

The timing of the prenuptial agreement can be important as well. For example, while there is no bright line rule, the farther away from the wedding date that the prenuptial agreement is signing by both parties is almost ways better.

But one important first step is for both parties to hire their own separate counsel. Separate counsel can give both parties the pros and cons of entering into the prenuptial agreement. Separate counsel can also help ensure that there is no undue influence, duress or coercion taken place and can help ensure that the client is disclosing all the property and debt they have coming into the marriage.

In the end, when a prenuptial agreement is proffered to the court in a divorce, one of the most important items a family court judge will likely look at it in deciding whether to enforce a prenuptial agreement is whether both parties have separate counsel. For this reason, it is a step that should never be skipped.