Draft Prenuptial Agreement

Skill: Draft Prenuptial Agreement

1. Subject-matter triage

• Treat the agreement as a coupled drafting exercise: the operative agreement and the drafting-issues memo must be internally consistent and based on the full source set.
• Before drafting, inventory all source documents and identify which are controlling for disclosures, negotiated terms, valuations, and execution formalities.
• If more than one party, asset class, or date period is in play, enumerate them explicitly before analysis so each item is handled once and not blended into a generic provision.
• The primary deliverable is the agreement; draft it first, then draft the memo only after the agreement exists and contains operative clauses and schedules.

2. Failure modes the skill is correcting

• Drafting without reconciling every disclosure schedule against the source set, leaving assets or liabilities omitted from the agreement or memo
• Importing appreciation concepts from the wrong marital-property regime instead of tailoring the methodology to the governing jurisdiction
• Stating support terms without resolving whether career-interruption credits supplement, offset, or duplicate support
• Leaving indexed monetary terms without a clear base month, base year, index name, and adjustment cadence
• Confining voluntariness protections to recitals in the memo instead of making them operative in the agreement
• Treating valuation, disclosure, and waiver language as isolated clauses when they function as a single enforceability system
• Drafting issue notes that describe concerns but do not state the applicable authority, risk, and fix

3. Legal frameworks / domain conventions that apply

• Premarital agreement enforceability is governed by the applicable state premarital-agreement statute and its common-law voluntariness and disclosure standards; draft express acknowledgments of advance exchange, independent counsel, and adequate review time
• Business appreciation must be defined for the governing marital-property regime: specify starting value, treatment of passive versus active appreciation, and valuation mechanics rather than relying on unstated default rules
• Spousal-support drafting should account for unconscionability risk, especially in short-marriage or waiver structures; include a floor, savings clause, or staged support where appropriate
• Career-interruption credits should define qualifying events, credit amount, eligibility threshold, duration, and express relationship to support to prevent double recovery
• Sunset provisions should state the trigger, notice mechanics, and whether pre-trigger property classifications survive
• Indexed payment provisions require the controlling index, base date, adjustment frequency, and rounding rule if material
• Standard general provisions should include governing law, integration, severability, amendment, waiver, and execution formalities, plus certificates of independent counsel where customary
• Every legal proposition used in the agreement or memo should be tied to a named authority, statutory section, or recognized doctrine; avoid conclusory statements without support

4. Analytical scaffolds

1. Cross-check every asset, debt, entity interest, and contingent item appearing anywhere in the source set against each party’s disclosure schedule; if an item appears in sources but not in the schedule, treat it as a disclosure deficiency requiring correction.
2. Identify the governing jurisdiction and align the drafting to that jurisdiction’s premarital-agreement framework, including enforceability, disclosure, and voluntariness requirements.
3. Extract all agreed terms from the term sheet and mark any rejected, revised, or conditionally accepted term so the agreement reflects the final negotiation state.
4. Determine the business-appreciation approach appropriate to the governing jurisdiction and define it with a starting value, valuation date, measurement method, and passive/active allocation rule.
5. Draft support provisions together with career-interruption credits as one system: state whether the credit is additive, offsetting, or exclusive, and add a savings clause where waiver risk exists.
6. Draft any sunset clause with its trigger, notice requirement, and effect on property classifications and pre-trigger accruals.
7. Draft every CPI or similar adjustment clause with the named index, base month and year, frequency, and any rounding or floor/ceiling mechanics.
8. Put voluntariness recitals into the agreement itself, covering disclosure exchange, independent counsel, and time for review, rather than leaving them to the memo.
9. For the issues memo, identify each issue, the source document in which it arose, the legal risk, the controlling authority, and the recommended resolution.

5. Vertical / structural / temporal relationships

• Term sheet positions control the drafting baseline; later counterproposal or follow-up materials control only to the extent they amend or replace earlier terms.
• Disclosure schedules should be checked against valuations and appraisals so that value, ownership basis, and classification align across documents.
• Business valuation summaries supply the starting value for appreciation clauses; do not infer a starting value from a later statement of account.
• Support, credit, and waiver provisions must be read as a single economic package, not as separate standalone promises.
• Sunset mechanics can alter the operation of appreciation and classification provisions; state whether pre-trigger accruals remain governed by the agreement or revert to default law.
• Execution formalities and counsel certificates should track the agreement’s recitals and general provisions so the record of voluntariness is coherent.

6. Output structure conventions

• Produce two file-ready deliverables: the prenuptial agreement and the drafting-issues memo.
• Agreement conventionally proceeds as: recitals; definitions; disclosure acknowledgments; separate-property schedules; treatment of business interests; residence and debt provisions if relevant; support provisions; career-interruption credit; sunset; indexation; general provisions; execution blocks; counsel certificates.
• Use operative language in the agreement, not commentary or issue-spotting prose.
• The memo should be issue-based, with each entry stating the issue, source document, applicable authority, legal risk, and recommended fix.
• Use an ordinal severity label consistently for memo entries, and keep the scale defined once at the start of the memo.
• Each memo issue should close with the practical consequence to the client and the drafting action needed.
• End the memo with a concise Recommended Actions section that assigns the action, responsible role, and timing anchor.
• Confirm that the agreement file is complete and non-empty before treating the memo as finished.