A Georgia divorce settlement agreement can survive the loss of one unenforceable promise. But once the agreement becomes part of the decree, a severability clause has no place in it.
Severable or Entire
OCGA 13-1-8(a) draws the line: “In an entire contract, the whole contract stands or falls together. In a severable contract, the failure of a distinct part does not void the remainder.” Which kind you have “is determined by the intention of the parties.” OCGA 13-1-8(b).
Most settlement agreements are severable, because they contain many separate promises. In Charles v. Leavitt, 264 Ga. 160 (1994), a father’s promise to pay college costs was unenforceable because it left the decision to his “unfettered control and discretion,” but the rest of the agreement stood: it “did not consist of a single promise, based on a single consideration,” but contained “a promise to do several things,” so “the remaining promises, which are not illegal, remain valid.” Likewise, when the Georgia Supreme Court found one child support paragraph hopelessly ambiguous in Dohn v. Dohn, 260 Ga. 511 (1990), its decision did “not affect the validity of the remaining provisions of the agreement.”
A Clause in the Decree Is Different
Agreements often say that if any provision is held invalid, the others continue in force. In Kautter v. Kautter, 286 Ga. 16 (2009), that language ended up in a divorce decree entered after a bench trial. The Georgia Supreme Court held that while such clauses “are seen in statutory enactments and contracts,” a severability clause “is wholly inappropriate in a judicial decree resolving a case before a court,” and it directed the trial court to strike the language.
Prenuptial Agreements
Prenuptial agreements are different again: a judge deciding whether to enforce one is not bound by its severability clause, as our post on that question explains.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!