This is a companion post to a previous article entitled Why Normal People Need Prenups.
If you’re convinced a prenup is an idea worth exploring, your next step is figuring out whether you want to hire a lawyer or use template.
Googling “(State) prenup” yielded a number of surprisingly high quality documents. Keep in mind that you don’t technically need a lawyer for your prenup to be valid. You can write up your own prenup if you choose, or use a template you find online.
Templates might work for your needs if what you want is very simple. Prenups have the best chance of standing up in court if challenge when both parties have had the opportunity to consult with a lawyer. So if you’d like extra protection but have simple needs and want to keep costs low, you might consider choosing a template that meets your needs and then each paying for a half hour consultation with a lawyer. Then you can write in the contract that you both had an opportunity to have legal counsel (including their names).
This consultation will also prevent you from making any truly unwise decisions – a lawyer can look at your template and tell you if there is problematic language or key components missing that prevent it from achieving your goals.
Depending on where you live, an approach like this can cost you anywhere from $0-$600.
Online Flat Fee Services
There are several services online that are a hybrid of templates and custom attention from an attorney. The one that comes first to mind is Legalzoom. While I have not personally used the service, several members on forums I frequented during my own prenup-drafting process had. Their experiences were relatively positive. To be clear, you often aren’t getting the cream of the crop when it comes to legal minds when you go this route.
This route would be best for someone with mostly cut and dry needs and perhaps a moderate amount of complexity around just one or two points.
Cost as of this writing appears to be $1000.
Hiring A Lawyer
Perhaps you have decided on a completely bespoke model. I chose this route as there were several aspects of my situation that required unique language and treamtent.
I spent hours and hours trying to find a lawyer. Be aware that many lawyer review sites you find derive their revenue from selling advertisements and packages to lawyers, so the reviews you are seeing may not be completely unbiased. Here were a few of the best tips I received and discovered for finding a good lawyer:
- Ask for a recommendation from someone who has used one before
- Use Yelp or other more impartial review sites where it’s well known that businesses are not allowed to delete reviews
- Search Martindale – Martindale is one of the largest databases for attorneys of all practice types
Once I had several names from this research I tried to look for the following criteria:
- Divorce lawyer – Don’t just go to someone with family law experience. You want somebody who has been in court and on the other side of divorce proceedings so they know what to warn you against
- Ratio of divorce/prenup experience to other work – Many attorneys in this larger field of Family Law will take on many kinds of work. You should try and find someone who spends the majority of their time on divorce law. I also liked to ask how many prenups they draft a year. Perhaps I’m cynical, but I always took their answer and haircut it by a bit. Any answer less than 10 a year was way too little for me.
- Ask for a free consultation – Many will offer this. I studied up on basic tenets of law on Nolo.com and other sites so when we had the consultation I could see if they brought up many of the more common questions and concerns, which gave me a sense for how competent and engaged they were
- Try to communicate both by phone and email. You get to see their response times and also get a sense for their style of communication. This is someone you’re going to have to trust and lean on in talking about many sensitive subjects. If the chemistry is not right – if they’re overbearing, or seem distant and not very engaged, then follow your gut and cut bait. There’s nothing worse than being stuck in an agreement with a lawyer you don’t feel has your best interests at heart or won’t listen to you.
Once you’ve narrowed down your choices, you’ll be talking cost. There are two main models attorneys use:
Hourly Rate: The attorney will bill you at a quoted price per hour. They will usually ask for a retainer, which is an upfront amount you pay them that they can draw down as they spend more time on your case. Be careful – many a client has had sticker shock with how fast these retainers run down. Lawyers are supposed to provide you a regular invoice of where that time went. I personally asked for them to put a stop one hour before my retainer ran out and check in with me so I didn’t get an unforeseen bill later. I would make sure you ask for this and have their confirmation to notify you in writing (i.e. email) so if there are any disputes later you can refer to it.
Flat fee: Self explanatory. This has the benefit of providing you clarity on how much this is going to cost you all in. The downside is if you find your attorney is not very engaged or cutting corners to minimize their time, you’re quite out of luck.
The way to get the most bang for your buck once you’ve hired your lawyer (and your spouse has hired their own) is to go for a consultation with your separate lawyers to get a briefing, and then sit down at the kitchen table with your spouse and hash things out in plain language before returning to your lawyers with a set of instructions. Your lawyers will be happy to do most of the interfacing, and you may initially want them to in order to avoid having the uncomfortable conversation directly with your partners, but having the lawyers do it not only racks up hours and hours at several-hundred-dollar rates, but it also adds more murkiness to the process; like a game of telephone, the more folks involved in the translation, the more opportunities for ambiguity mistakes to be created.
Hopefully this helps you get your bearings as to what approaches to can take to drafting a prenup. I continue to believe the prenup process is an excellent exploration exercise for every couple and a wise way to start a partnership.