In almost every case, one attorney cannot represent both parties in a prenup. Attorney ethics rules treat the two sides of a prenuptial negotiation as having directly opposing interests, so joint representation is either prohibited outright or, at best, permitted in narrow circumstances that carry heavy enforceability risk. The standard approach is one lawyer for each person: one attorney drafts the agreement for their client, and the other party hires separate counsel to review and negotiate.
Why the Rules Treat a Prenup as Adverse
The American Bar Association’s Model Rule 1.7 says a lawyer has a concurrent conflict of interest whenever representing one client would be “directly adverse” to another, or when there is a significant risk that duties to one client would materially limit the lawyer’s work for the other.1American Bar Association. Model Rules of Professional Conduct Rule 1.7 Conflict of Interest Current Clients A prenup hits both prongs. One person usually wants to shield assets from division. The other is being asked to give up future claims to those same assets. A single lawyer cannot push hard for both positions at the same table.
The practical duties matter too. Your lawyer is supposed to flag provisions that hurt you, negotiate terms that protect you, and make sure you understand exactly what you are signing away. Those obligations run in opposite directions when the same person owes them to both spouses.
Can Both Parties Just Consent in Writing?
Rule 1.7 contains an exception. A lawyer may represent two clients with a concurrent conflict if the lawyer reasonably believes competent representation is still possible, the representation is not prohibited by law, and each client gives informed consent in writing.1American Bar Association. Model Rules of Professional Conduct Rule 1.7 Conflict of Interest Current Clients Read alone, that language might suggest a couple could sign a waiver and share one lawyer.
The official commentary closes that door for most prenups. It states that “a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other.” Common representation is reserved for clients who are “generally aligned in interest even though there is some difference in interest among them,” like co-founders organizing a business.2American Bar Association. Model Rules of Professional Conduct Rule 1.7 Conflict of Interest Current Clients – Comment Courts that have looked at prenups in this light have generally concluded the two sides’ interests are inherently antagonistic. You may feel aligned at the kitchen table. The law looks at the structure: one person gains protection, the other surrenders rights.
Even where a court has tolerated a shared attorney because both spouses’ goals seemed genuinely aligned, the arrangement plants a landmine. The spouse who later wants out of the agreement has a ready argument that the shared lawyer never truly protected them. That is reason enough to avoid dual representation, whether or not the rule technically permits it in your state.
How Prenups Actually Get Drafted
The workable structure is simple. One party, usually the one with more assets to protect, hires an attorney to draft the initial agreement. That attorney represents only that party. The draft goes to the other party, who takes it to their own lawyer. The reviewing attorney explains what rights their client would be waiving, flags one-sided provisions, and negotiates changes. The two lawyers exchange revisions until both clients are comfortable.
This two-attorney setup is the strongest foundation for an enforceable prenup. It creates a clean record that both people received independent legal advice, understood what they were signing, and signed voluntarily. Judges look at exactly those factors when a prenup is challenged years later. Attorney fees for a prenuptial agreement typically run from around $1,500 to $10,000 or more depending on complexity, location, and how much negotiation is involved. Compared with the cost of watching the agreement fall apart in a divorce, separate counsel is inexpensive.
What If One Person Skips a Lawyer?
Sometimes one party declines to hire counsel, either to save money or because they trust their partner’s attorney to be fair. This does not automatically kill the agreement, but it puts it on shaky ground. Courts apply closer scrutiny to prenups where one party was unrepresented.
The Uniform Premarital and Marital Agreements Act, a model law that has influenced prenup rules across the country, lists access to independent legal representation as a core requirement for enforceability. Under that framework, a prenup is unenforceable if the challenging party proves they did not have access to independent counsel.3National Conference of Commissioners on Uniform State Laws. Uniform Premarital and Marital Agreements Act “Access” does not mean the person must actually hire a lawyer. It means they had reasonable time to find one, the financial ability to pay for one (or the other party offered to cover the cost), and made a voluntary choice about whether to proceed without representation.
When one party is unrepresented, the agreement must also include a plain-language explanation of the rights being waived, written in that party’s primary language.3National Conference of Commissioners on Uniform State Laws. Uniform Premarital and Marital Agreements Act Some states go further. A handful require the unrepresented party to receive independent legal advice at least seven days before signing, or that a waiver of counsel be documented in a separate writing. Specifics vary by jurisdiction. The theme is consistent: the less legal protection one party had, the easier it becomes for a court to void the agreement.
One caution about the attorney who drafted the document. That lawyer represents only their client. They cannot give the unrepresented party legal advice, cannot explain what the unrepresented party is giving up in a way that protects that person’s interests, and cannot answer questions the way a lawyer of their own would. If you are the party being asked to sign, treat the drafting attorney as the other side.
Is a Mediator a Middle Path?
Some couples prefer to work with a neutral mediator rather than run the entire negotiation through opposing attorneys. A mediator does not represent either party. Under Model Rule 2.4, a lawyer serving as a third-party neutral must tell both parties that the lawyer is not representing them, and must explain how the neutral role differs from a traditional attorney-client relationship.4American Bar Association. Model Rules of Professional Conduct Rule 2.4 Lawyer Serving as Third Party Neutral
The mediator helps the couple work through their priorities and draft terms both can accept. This can reduce conflict and cost compared with two attorneys negotiating every clause. But mediation is not a substitute for independent legal advice. After the mediated draft is complete, each party should still take it to their own attorney for review before signing. That final review is what makes sure both people understand the legal consequences of what they have agreed to, and it protects the agreement’s enforceability later.
What Happens If the Structure Fails
The reason all of this matters is that a prenup only helps you if a court will enforce it. Under most state frameworks, a properly signed agreement can still be struck down if the terms are unconscionable, meaning grossly unfair to one party at the time of signing. The UPMAA also lets courts consider whether enforcement would cause undue hardship due to a substantial change in circumstances since signing.3National Conference of Commissioners on Uniform State Laws. Uniform Premarital and Marital Agreements Act
Common grounds for invalidation include involuntary consent or duress, no realistic access to independent counsel, inadequate financial disclosure, and terms so lopsided no reasonable person with proper advice would have signed. Sharing a lawyer, or leaving one party without counsel, feeds directly into two of those grounds and makes the others easier to argue. When a court invalidates a prenup, the couple defaults to their state’s standard divorce laws for property division and spousal support, which is often more expensive and less predictable than the deal either party would have negotiated. Cutting corners on the process to save money upfront regularly produces the worst financial outcome for both sides.