Severability of Provisions in Prenuptial Agreements

The Court of Appeal has ruled that the invalidity of a spousal support waiver does not necessarily make the remaining provisions of a prenuptial agreement ineffective.  Rather, the trial court must consider whether the remaining provisions may properly be severed and enforced.  Marriage of Facter (2013) 212 Cal.App.4th 967.

In the Facter case, the parties signed a prenuptial agreement in 1994.  The prenuptial agreement included a spousal support waiver and language providing that none of the property acquired during the marriage would be community property.

The trial court found that the spousal support waiver was unconscionable, based on the parties’ educational backgrounds and economic status.  Thus, the spousal support waiver was not enforceable.  The trial court further found that the provisions set forth in the prenuptial agreement were not severable, such that the entire prenuptial agreement, including the community property disclaimer, was not enforceable

The Court of Appeal reversed this decision.  The appellate court agreed that the spousal support waiver was unconscionable, but disagreed that the prenuptial agreement was not severable.  Instead, the Court of Appeal decided that the community property disclaimer could be properly enforced as a separate, severable agreement, since it had complied with existing law.

The Facter case highlights the importance of including severability language in prenuptial agreements.  In the absence of such language, a finding that one portion of the prenuptial agreement is unenforceable puts the entire agreement at risk.  However, where severability language is included, the remaining provisions of a prenuptial agreement can be enforced even when a provision is held unconscionable.