Ever heard of a severability clause? While it may sound like a scary legal term, it’s pretty straightforward. It allows a prenup (or any contract) to remain intact while one or more of the other clauses are stricken by the court. It’s a good way to protect your prenup, and most well-drafted agreements will include this type of clause. But what does this clause look like, what are the advantages and disadvantages, how does an infidelity clause play into it, and what happens if you don’t include one? We discuss all of this and more so keep reading.
What is a severability clause in a prenup?
A severability clause in a prenup essentially states that the clauses within the agreement are independent and separate from one another. It allows the court to void language it deems offensive, unconstitutional, or unenforceable while keeping the rest of the agreement intact. The first half of the word severability, “sever”, gives a clue to its meaning. A court can remove or sever a specific portion of an agreement without affecting the validity of the entire contract.
Wow! Wouldn’t it be wonderful if we could use this strategy in real life? We’ve all had those moments when you wish you could hit rewind and return to the second immediately before certain words came out of your mouth. If there were a Severability Clause Button, you could delete your ignorant or offensive statement from the insulted party’s mind forever, leaving your credibility and, dare I say… likeability, intact. Why are we inventing self-driving cars when life hacks like this are yet to be created?!
What would happen if there were no severability clause in a prenuptial agreement?
If you enter a contract that does not have a severability clause, you risk the entire agreement being thrown out if the court finds one of the clauses to be illegal or unenforceable. In a prenup, for example, if the judge finds language in an infidelity clause to be unenforceable, the whole agreement could be at risk. This would mean the effort and intention you and your partner put into predetermining the classification and division of assets might have been a waste of time. The court would then divide your assets and liabilities as though there were never a prenup in place.
Let’s use a simple analogy to explain how severability clauses work in real life. Say you spend a beautiful afternoon in an orchard picking apples with your love. This was the pinch-me kind of day you thought only existed in movies until you experienced it yourself. Upon returning home, you find that within your basket of 30 shiny, organic apples, there was a rotten one! Are you going to throw the entire basket of memories into the trash can and see the romantic excursion as a waste of time? Absolutely not. You would throw the single rotten apple into the trash and enjoy the other 29 perfect apples as you intended. By including a severability clause in your prenup (or in any contract for that matter), you’re gifting yourself the ability to keep your agreement alive despite a few bad apples.
Why would a clause in a prenup be invalidated?
A court might invalidate a clause in a prenuptial agreement if it is unconstitutional, against public policy, or if the judge views it as unenforceable. Courts would likely strike language that limits child support or child custody. Lifestyle clauses are another culprit. These clauses include language that requires spouses to follow specific personal obligations or face a consequence—usually a financial penalty. Some examples of a lifestyle clause are:
- infidelity clauses
- social media clauses
- language related to the way couples spend their time
- requirements related to physical intimacy
- a spouse’s weight or physical appearance
- limitations on alcohol use
Courts are also prone to invalidate language that imposes overly burdensome standards. Some states are less likely to uphold these clauses than other states. California, Illinois, and Texas, for example, usually do not uphold or enforce the financial penalties associated with infidelity and other lifestyle clauses (Diosdado v. Diosdado (2002)). On the other hand, Pennsylvania, New York, and Maryland, in limited situations, might uphold a lifestyle clause depending on provability and public policy considerations (Loyd v. Niceta (2023)).
Are there disadvantages to severability clauses?
As we have established, severability clauses are important and can potentially save your prenuptial agreement from being invalidated based on one poorly drafted clause. However, it’s possible a severability clause could leave you with a binding agreement that does not meet your original intentions. In your prenup, there will be terms and clauses that you view as critical to the document as a whole. These are called “essential terms.” Due to the inclusion of a severability clause, a court might remove a clause you value deeply but enforce the rest of the agreement.
An example: In his prenup, Sam agrees to pay his spouse a lump sum upon divorce. At the end of the agreement, he also includes an infidelity clause that states that if his spouse is unfaithful, she will not receive the lump sum payment. If there’s a severability clause protecting his prenup and the court invalidates the infidelity clause, the rest of the agreement could still be enforceable, along with his obligation to pay a lump sum upon divorce regardless of infidelity.
If you are concerned about your severability clause or have any questions, you should consult with a licensed attorney, as they can answer and guide you through this legal concept.
The bottom line on severability clauses in prenuptial agreements
Including a severability clause in your prenup can save your agreement from being thrown out by the court. Mistakes can happen in drafting contracts, and this clause shields your document from language a judge might view as unenforceable. On the flip side, if a severability clause does its job, it will keep the remainder of your agreement intact even if a court invalidates your favorite clause. Using a well-respected online prenup platform, such as HelloPrenup, that includes severability clauses can help safeguard your goals and intentions through a well-drafted prenuptial agreement. Happy planning!
Jourdan Stewart is Legal Operations Attorney at HelloPrenup, and a Texas licensed attorney. Jourdan is experienced in drafting prenuptial agreements, and her legal expertise extends to other aspects of family law, business law and entertainment law. Jourdan earned her law degree from Pepperdine University, her MBA from The Acton School of Business, and her BBA from Baylor University. Jourdan’s favorite aspect of legal practice is helping clients fully understand and achieve their goals. She finds great satisfaction in tailoring solutions to each client’s unique set of wants and needs. When she’s not practicing law, Jourdan can be found in nature with her two children and their dog, Stewey.
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