§ 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

--------

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. Edwards, 16 Neb. App. 297, 744 N.W.2d 243 (2008).
Pennsylvania: Huber v. Huber, 323 Pa. Super. 530, 470 A.2d 1385 (1984).
South Dakota: Sanford v. Sanford, 2005 S.D. 34, 694 N.W.2d 283 (2005).
Tennessee: Kahn v. Kahn, 756 S.W.2d 685 (Tenn. 1988).
Utah: Neilson v. Neilson, 780 P.2d 1264 (Utah App. 1989).

Some states that have adopted the Uniform Premarital Agreement Act include a provision that the invalidity of a section of an agreement should not affect other sections of the agreement that can be given effect without the invalid provision. See, e.g.:

Iowa: Iowa Code § 596.8.
North Carolina: N.C. Gen. Stat. § 52B-11.
Rhode Island: R.I. Rev. L. § 15-17-11.

^[476] See, e.g.:

California: In re Marriage of Dawley, 17 Cal.3d 342, 131 Cal. Rptr. 3, 551 P.2d 323 (1976); Facter v. Facter, 212 Cal.

...