Do I Need Separate Attorneys for a Prenup?

Washington does not absolutely require each partner to have a separate attorney for a prenuptial agreement, but having independent counsel on both sides is one of the strongest things you can do to make the agreement enforceable. Skipping it is a gamble that often does not pay off when the agreement is later challenged.

Why Independent Advice Matters So Much

Because Washington has no statute governing prenuptial agreements, their enforceability is decided under case law. The controlling framework comes from In re Marriage of Matson, 107 Wn.2d 479 (1986), where the Washington Supreme Court set out a two-prong test that courts still use.

Under the first prong, a court asks whether the agreement is substantively fair, meaning whether it makes a reasonable provision for the spouse who is not trying to enforce it. If the agreement is fair on its terms, the inquiry ends. But if the agreement is one-sided, the court moves to the second prong and examines the process behind it. That procedural prong asks two questions: whether both spouses fully disclosed the amount, character, and value of their property, and whether each spouse entered the agreement freely, on independent advice, with full knowledge of the rights being surrendered.

Independent legal advice is written directly into that second question. When each partner has his or her own attorney, it becomes far easier to show that both people understood what they were signing and agreed to it voluntarily. That is exactly the record a court looks for when deciding whether a lopsided agreement should still be enforced.

Strongly Advisable, Even When Not Strictly Required

It is worth being precise here. Matson does not say that a prenup automatically fails without two lawyers. In fact, the Matson analysis recognizes that a lack of independent counsel can sometimes be offset by other circumstances, such as a spouse who genuinely understood the assets and the agreement despite not hiring separate counsel. So in a narrow sense, separate attorneys are not an absolute requirement in every case.

That said, treating independent counsel as optional is a risky strategy. When only one spouse has a lawyer, or when the same attorney tries to advise both, the spouse challenging the agreement later has a ready argument: that he or she never got neutral advice and did not truly understand the consequences. The safer, stronger course is for each partner to have his or her own attorney, precisely so that argument never gets off the ground.

The Problem With One Lawyer for Both

Couples sometimes ask whether a single attorney can just draft the agreement for both of them to save money. The trouble is that a prenuptial agreement, by its nature, sets the partners' financial interests against each other. One lawyer cannot fully advocate for both sides of a negotiation at once, and a spouse who later regrets the deal can point to that shared representation as evidence that the process was not fair.

In practice, the usual arrangement is that one attorney drafts the agreement and the other partner takes it to his or her own independent attorney for review before signing. That review gives the reviewing partner a real chance to understand the terms, ask questions, and negotiate changes. It also builds the kind of record, meaning separate advice, a genuine opportunity to review, and a voluntary signature, that satisfies the procedural fairness prong of Matson.

Disclosure Goes Hand in Hand With Counsel

Independent advice works together with full disclosure. Even the best attorney cannot properly advise a client who has not been shown the other partner's real financial picture. Washington courts under Matson expect both spouses to disclose the amount, character, and value of their property so that each can make an informed decision. Two lawyers help ensure that disclosure actually happens and that each client understands what those disclosures mean for the rights being given up. Combine full disclosure with independent counsel and unhurried timing, and you have built an agreement on the firmest possible footing.

A Snohomish County Perspective

For couples here in Snohomish County, retaining separate attorneys is usually straightforward, and the modest added cost is small compared to the expense and stress of litigating an unenforceable agreement during a divorce in the Superior Court. If a prenup falls apart, the couple lands back under Washington's default community property rules and a judge's discretion to divide property as he or she sees fit, which is the very uncertainty the agreement was meant to avoid. Spending a little more up front to have both partners independently advised is often the cheapest insurance available.

Protecting the Agreement You Worked to Build

A prenuptial agreement is only worth as much as its ability to hold up when it matters. Independent counsel for each partner is not a legal technicality; it is one of the clearest ways to show a court that the agreement was fair, understood, and freely made. Even where it is not strictly mandatory, it is almost always the wiser choice.

If you are considering a prenuptial agreement and want to make sure it is built to last, the Law Office of Chad Foster can help you understand your options and structure the process so both partners are properly advised. Reach out to talk it over.