# Question 31: The Prenup Memo Audit

## Your role

You represent Nora Pell in the fictional State of Westmere. Nora is reviewing a predecessor lawyer's memorandum about a prenuptial agreement before deciding whether to negotiate a separation. Audit the memorandum under the supplied rules without rewriting conclusions that are already correct.

## Governing law

Assume the following Westmere rules apply:

1. A premarital agreement is enforceable when it was executed voluntarily, after fair and reasonable financial disclosure or a valid written waiver, and was not unconscionable when executed.

2. Independent counsel is relevant to voluntariness but is not mandatory. A represented party may waive separate counsel after a meaningful opportunity to obtain it and a clear explanation that the other party's lawyer does not represent that party.

3. No fixed number of days before marriage is required. Timing, pressure, access to the draft, threatened cancellation, sophistication, and opportunity for advice are considered together.

4. Disclosure is fair and reasonable when it identifies the nature and approximate value of material assets and liabilities. Exact valuation is unnecessary, and later appreciation does not make an earlier reasonable estimate false.

5. Unconscionability is assessed at execution, not by comparing the parties' fortunes years later. A bargain is not unconscionable merely because one party's separate property later appreciates dramatically.

6. A maintenance waiver will not be enforced to the extent enforcement at separation would make a spouse eligible for public assistance. The court may order only the support necessary to avoid that result.

7. A valid severability clause preserves enforceable property provisions when a maintenance provision is limited, unless the provisions are inseparable by their text or purpose.

8. The party resisting enforcement bears the burden of proving involuntariness, inadequate disclosure, or unconscionability.

## Facts

Nora and Daniel Pell signed a premarital agreement eighteen days before their wedding. Daniel's lawyer sent Nora the first complete draft 32 days before the wedding. The cover email stated that the lawyer represented Daniel only and urged Nora to retain separate counsel.

Nora, then a 38-year-old owner of a profitable design studio, replied:

> "I understand you are not my lawyer. I do not want to spend money on another lawyer unless the document changes."

Daniel offered to pay up to $7,500 for Nora's counsel. Nora declined in a signed paragraph stating that she had a meaningful opportunity to obtain independent advice and chose not to do so. No one threatened to cancel the wedding. Nora proposed two changes, both of which Daniel accepted.

Daniel's disclosure schedule identified:

* A 22 percent interest in Quayside Systems, estimated at $1.2 million to $1.8 million.
* Retirement and brokerage accounts totaling approximately $610,000.
* A residence with $420,000 in equity.
* Debts of approximately $190,000.

A contemporaneous independent valuation placed the Quayside interest at $2.1 million. Daniel did not attach that report, but the agreement stated that private-company values were estimates. Nora disclosed her design studio, worth approximately $900,000, and investments of $430,000.

The agreement provides that each party keeps separate property and appreciation, waives maintenance, and receives no interest in the other's business. It gives Nora a fixed $150,000 payment after ten years of marriage. It contains a broad severability clause.

Twelve years later, Quayside is worth far more, making Daniel's interest approximately $38 million. Nora's studio failed during a regional disaster. Nora now has a disabling neurological condition and limited income. Without some maintenance, she would qualify for public assistance. Daniel does not contend that the $150,000 payment or separate-property provisions are textually dependent on the maintenance waiver.

The predecessor memorandum states:

> **Conclusion 1.** The entire agreement is automatically invalid because Nora did not have independent counsel.
>
> **Conclusion 2.** Even if execution was voluntary, the agreement is unconscionable because Daniel's company interest is now worth about $38 million while Nora is disabled.
>
> **Conclusion 3.** The original Quayside disclosure was probably adequate because it identified the asset and a reasonable approximate range; later appreciation does not retroactively falsify it.
>
> **Conclusion 4.** The court may order maintenance only to the extent needed to keep Nora off public assistance, while enforcing the separate-property and fixed-payment provisions under the severability clause.
>
> **Conclusion 5.** The eighteen-day signing interval does not itself establish duress because Nora received the full draft earlier, proposed changes, faced no cancellation threat, and signed a counsel waiver.

## Assignment

Review and correct the predecessor memorandum by:

* Identifying the two conclusions that misapply the supplied enforceability rules.
* Explaining the precise rule error in each.
* Leaving the legally correct conclusions intact rather than manufacturing additional faults.
* Assessing voluntariness, disclosure, execution-time unconscionability, maintenance, and severability under the supplied facts.
* Stating the most likely enforceable and unenforceable portions.
* Advising Nora how the corrected analysis should affect separation negotiations and what relief she should seek.

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