Neilson v. Neilson
In Neilson v. Neilson, 780 P.2d 1264, 1270 (UtCtApp 1989), valid property provisions in a prenuptial agreement were upheld despite the inclusion of an invalid property provision that encouraged divorce that was found to be against public policy.
That court noted that the provision that granted the wife a specified number of shares for each year of the marriage was valid and separable from the invalid provision that encouraged divorce, and provided a windfall of $ 400,000 for the wife if she was able to motivate the husband to divorce her. Id. at 1269.
The rationale for the severability was based on Restatement (Second) Contracts 184. Id. at 1270.
The prenuptial agreement in Neilson provided that the husband would transfer a specified number of his total shares, which comprised his major retirement income asset, for each year of the marriage beginning with one-nineteenth in the first year and one-eleventh in the ninth year so that each spouse had the same number of shares at the end of the ninth year of marriage. Neilson, 780 P.2d at 1266.
The agreement contained another provision in the event the parties divorced in an action initiated by the husband that would automatically entitle the wife to the number of shares that would provide her with an equal number of shares as the husband owned, regardless of the number of years the marriage survived. Id.
That court held the end result of the clause was a $ 400,000 incentive for the wife to induce the husband to seek a divorce at the earliest possible date. Id. at 1269.