When couples are planning to marry and one party is contemplating asking the other to sign a Pre-Nuptial Agreement, I am often asked why I can’t represent both parties when I draft the agreement. The answer is simple: because each party has conflicting interests.
When one person enters into a marriage with another person, each acquires specific rights with respect to the martial property. In order to represent both parties, I would be obligated to advise party #1 that without a pre-nuptial agreement, his or her assets may be in jeopardy in the event of a divorce. At the same time, I would be obligated to advise party #2 that he or she may be entitled to some portion of those same assets if a pre-nup is not signed. This is a clear conflict.
Instead, an attorney will represent one party by drafting the prenuptial agreement. The second party should engage the services of an independent attorney to review the agreement and advise him or her of the legal ramifications of signing — or not signing — it.
The following is a link to an interesting post on the subject of pre-nups and post-nups courtesy of Estate Planning Bits blog: