Public Policy

A judicial doctrine that allows courts to refuse to enforce contracts that violate fundamental societal interests, even when the contract is otherwise valid.

Public policy is the catchall basis for refusing to enforce specific prenup provisions. Examples of provisions that violate public policy in most US states: clauses purporting to decide child custody (the child's best interests cannot be contracted away), clauses encouraging divorce, clauses imposing fault-based penalties for conduct courts won't police (sex, weight, social media), and clauses that conflict with state-specific statutory protections.

A public-policy violation typically voids the specific provision, not the whole contract — particularly if the prenup has a severability clause. But provisions central to the bargain can drag down the entire agreement.

Related terms

Severability — A clause stating that if one provision of the contract is unenforceable, the rest of the contract remains in force. Standard in prenups; especially important when state law voids specific provisions.
Unconscionability — A judicial doctrine that allows courts to refuse to enforce contracts that are shockingly unfair. The second pillar (with voluntariness) of prenup invalidation.
Choice of Law — A clause specifying which state's law will govern the interpretation of a contract. In prenups, often used by couples likely to move — but not always honored by future courts.

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