§ 4.09 Severability

• Jurisdiction: United States
• Publication year: 2021

§ 4.09 Severability

The law governing the enforceability of marital contracts is undergoing fundamental changes. It is impossible to predict how some court in the future might evaluate each provision of a marital contract. If a court determines that a provision is invalid, the question of severability arises. If the court concludes that an integrated agreement was intended, the entire agreement will be considered invalid if one provision is invalid.⁴⁷⁴ Alternatively, if each provision is considered independent, the invalidity of one provision will be considered severable and not affect others.⁴⁷⁵ A statement in the contract spelling out that the parties intend any invalid provision to be severable can be quite useful.⁴⁷⁶

In a California case, the court ruled that a provision that limited the wife's ability to claim spousal support was unconscionable and unenforceable. The court treated this provision as severable and enforced the agreement's provisions regarding equitable distribution.⁴⁷⁷

An Illinois court ruled that provisions purporting to have issues related to the parties' children decided by someone other than a judge were against public policy and unenforceable. The court further ruled that these provisions were not severable from the other provisions.⁴⁷⁸

Even if the premarital agreement contains a severability clause, if the entire agreement is permeated by fraud, the entire agreement will not be enforced.⁴⁷⁹

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Notes:

^[474] See, e.g.:

Missouri: Brennan v. Brennan, 955 S.W.2d 779 (Mo. App. 1997).
Nevada: Cord v. Neuhoff, 94 Nev. 21, 573 P.2d 1170 (1978).

^[475] See, e.g., Williams v. Williams, 569 S.W.2d 867 (Tex. 1978). See also:

Nebraska: Edwards v.

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