A severability clause does not control what a Georgia judge does with a prenuptial agreement.
What the Husband Argued
In Alexander v. Alexander, 279 Ga. 116 (2005), the antenuptial agreement contained a section headed “Full Disclosure by Parties,” stating that each party had disclosed all property owned “as is showing in Exhibits A and B attached hereto.” No such exhibits were ever attached. The husband also failed to disclose an investment account worth about $40,000.
When the trial court refused to enforce the agreement and declined to incorporate it into the divorce decree, the husband pointed to its severability clause and to OCGA 13-1-8(a), arguing that failing to attach the property lists should not void the entire contract.
Why It Did Not Work
The Georgia Supreme Court rejected the argument. “[I]n determining whether to enforce an antenuptial agreement, the trial court essentially sits in equity and has discretion to approve the agreement in whole or in part, or refuse to approve it as a whole.” From that, the Court concluded that “[t]he trial court was not bound by the language of the agreement as to severability, or even as to method of disclosure set forth therein.”
The reason is that the judge is not simply enforcing a contract according to its terms. The judge is deciding, in equity, whether the agreement should be given effect at all. A clause drafted to limit that inquiry does not limit it.
So a severability clause may still help with an ordinary drafting problem. It will not rescue an agreement that fails the test Georgia applies to prenuptial agreements. The decree in Alexander divided property and awarded alimony on terms different from what the parties had signed.
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