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.
A severability clause is essential boilerplate in any prenup. Without it, courts that strike one provision (e.g., an unenforceable child custody clause, or a state-prohibited support waiver) may treat the entire agreement as void. With severability, the unenforceable provision is removed and the rest of the contract stands.
Severability matters in particular states where specific waivers are categorically prohibited. New Mexico (Rivera v. Rivera) voids alimony waivers; South Dakota (Sanford v. Sanford) does the same. In both cases, a severability clause preserves the property provisions while eliminating the unenforceable support waiver.
Related terms
- Unconscionability — A judicial doctrine that allows courts to refuse to enforce contracts that are shockingly unfair. The second pillar (with voluntariness) of prenup invalidation.
- 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.
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