Prenups (and postnups) are, at their most basic, a contract between two people who make mutual promises to commit to certain behaviors and to avoid other behaviors, usually those involving finances, property, moving out during a separation, taxes, custody of pets, and plenty more.

Why does this basic contract cost so much money for drafting and guidance by an attorney or a mediator, especially when a "prenup in a can" is easily available online for a cheap fee?

1.    Customized Contracts

You are paying for the protection that comes from a contract tailored to your unique situation and goals. For example, drafting may be slightly different for people who are more concerned about isolating each other from the partners' debts or lawsuits than an older couple who is mainly concerned with keeping premarital assets for their children from previous marriages. 

You are paying for the years of legal training and career experience that inform the drafting of your prenup or postnup. For example, JustPrenups includes a number of terms from different statues and from case law over the years to ensure that there is no ambiguity in the contract's meaning.

Clear contracts result in more predictable outcomes. A cheap prenup may not be able to provide this security. Is that really a risk you want to take with your family business?

A generic downloaded form does not take an inventory of your needs, your problem areas, and your future plans. Most importantly, it does not assist you fully with disclosure, which is the cornerstone of a marital agreement's strength and enforceability. When prenups are set aside or invalidated, it is usually based on disclosure or timing issues not on the words of the contract itself.

Disclosure is the process of sharing information regarding your assets (e.g., real estate, stock, retirement funds) and liabilities (e.g., debt, alimony payments, etc.) with each other so that both partners may make an "informed consent" to enter into the marriage and into the prenup: both know what the other can offer, and both still choose the terms of the prenup. If disclosure is incomplete, fraudulent, misleading, or in any way inaccurate - even if unintentionally - your prenup may be vulnerable to attack later on in divorce court. 

2. The Crystal Ball

Prenups, postnups, and wills occupy an unusual space in law practice: they are legal documents with unusual longevity. In real estate law, the most long-term leases tend to cap at around ten years, for example. But a prenup can potentially last through an entire adult lifetime.

We have young clients in their mid-twenties who intend to spend their lives together. Imagine a document drafted at age 25 that is enforced at age 75 if, after 50 years of marriage, the couple decides to divorce. The lawyer or mediator has been asked to draft for circumstances 50 years into the future, which includes anticipating a number of unknowns in the couple’s life as well as future changes in statutes, case law, and social policy. You are paying for this level of expertise and guidance.

The mediator or attorney bears the burden of liability from managing clients who bring all these unknowns because of the extended timeframe.

3. Storage and Cyber Security

All law firms must pay for data storage, usually both physically for paper files and digitally for scans and online-only documents.

However, law firms that oversee prenup/postnup or estates must care for data for decades as a prenup or a will looks forward, including up to and after the death of the client to ensure the proper disposition of assets, debts, and other concerns as the client had intended. These firms are committed to storage and security for many more years per client than other law firms that handle, for example, a slip and fall case that looks backward at a specific timeframe and that concludes with a specific result. 

Additionally, the attorney must protect documents and the clients’ best interests after her own death and/or incapacity: in law, an inventory attorney is the person selected by the practitioner to assume control of a firm if/when that attorney is unable to supervise the daily requirements of the firm. The inventory lawyer contacts clients to ascertain their next steps and to preserve the security of stored data and the duty of confidentiality.

4. Whisper Down the Lane

If the couple chooses representation instead of choosing a mediated prenup, both sides must be represented by an attorney. One attorney cannot represent them both. This is specifically prohibited by nearly every State’s Bar Association.

Remember that in a representation scenario, the attorneys charge for time spent with each client individually as well as for time working on drafting, reviewing edits, and floating drafts back and forth until the parties agree on a final version. The representation route involves four people playing “whisper down the lane” as they work toward a finalized draft, and every whisper is billed by the time increment.

The attorneys must advocate and fight for you, and if you choose a different route than they advise…

Representation is an inherently adversarial endeavor.

An attorney commits ethically and strategically to advocating zealously for *one* party. The attorney is pitted against that party’s competing circumstances and against any party who has or who may have a conflicting interest. A prenup contemplates a time when the spouses are no longer acting in each other’s interests.

When the attorney for fiancé X drafts the prenup, this attorney advances the interests of only fiancé X, not fiancé Y. When fiancé Y’s attorney receives fiancé X’s draft, fiancé Y’s attorney will usually spend time - at an hourly fee - bringing the content more into alignment with fiancé Y’s best outcomes, and this draft will bounce back to fiancé X’s attorney. Fiancés X and Y may both be financially prepared to handle several rounds of drafting and consulting at an hourly rate, but what about the strain on the marriage of each side looking out for number one via two adversarial attorneys?

JustPrenups offers the alternative to representation: the mediated prenup or postnup, which is priced at a flat fee for either the entire process or for most of the work. The flat fee usually provides considerable savings to clients as opposed to hiring separate attorneys for each partner’s representation. Some of our clients with businesses, extensive assets, and/or a complicated legal picture may require some additional hourly work on top of the flat fee, but overall, this approach to a mediated prenup is usually much less expensive than hiring an attorney for each partner on an hourly basis.

Find the Best Option for You

You can learn more about your options, such as the differences between a mediated prenup and traditional representation, through scheduling a free consultation. Complete our checklist, and we can meet on Zoom during your lunch or dinner break. 

Warning: All posts on this website and its partner website, DADvocacy.com, contain general information about legal matters for broad educational purposes only. This information is not legal advice and should not be treated as such. This blog post does not create any attorney-client relationship between the reader and the DADvocacy™ Law Firm or between the reader and JustPrenups.com.