The negotiations leading to the execution of a
pre-nuptial agreement is indeed a delicate affair. Care must be had to not permit overreaching,
or any sign of trying to pull the wool over the other party's eyes,
lest the nuptials may never occur.
In order for a pre-nuptial to resist attack (and there is almost a certainty
that in the event the marriage ultimately leads to divorce the agreement
will be subject to attack by one of the combatants), full disclosure is
the key. All assets should be disclosed and appended to the agreement
as an exhibit in order to foreclose the argument that there was not full
disclosure of all financial data of a party.
When estimating the value of assets it is normally a good idea to estimate
on the higher value so there can be no claim of hiding true value. Once
full disclosure has been made, and each side has independent attorneys
to represent them, there is little chance that the agreement will be set
aside by the courts.
Of course traditional grounds of fraud, mistake of fact, or unconscionability
may nevertheless be employed if they otherwise exist.
The hope of all parties concerned is that the marriage will take place
and the couple live happily ever after. Negotiating a fair agreement is
a right step in this direction.