Part of My Prenuptial Agreement is Unenforceable Under Maryland Law. Now What?

In Maryland, and across the United States, we have “freedom of contract.” This means that you and another party (or parties) mostly can customize the terms of your agreements however you want without governmental interference. That freedom extends to prenuptial agreements, but it is not without limits. Certain subject matters cannot be controlled by a prenuptial agreement and clauses purporting to do so are necessarily unenforceable. Working with a knowledgeable Maryland prenuptial agreement lawyer can be invaluable in making the document you sign will accomplish the goals you desire to achieve.

Getting your prenuptial agreement “right” is crucial for multiple reasons. For one thing, courts will (due to freedom of contract) enforce most prenuptial agreement provisions as written. However, on the other hand, including an unenforceable provision may substantially damage your overall agreement.

A recent divorce case originating in Prince George’s County shows what can happen when a prenuptial agreement goes wrong. The agreement contained one paragraph that said that if the wife left, filed for separation, or filed for divorce, the husband would get full custody of the couple’s children and the wife would receive “unlimited visitation rights.” Additionally, the wife promised in the second paragraph to raise the children in the Islamic faith.

A third paragraph discussed the division of property.

As noted above, you can customize a prenuptial agreement in many ways. You cannot, however, dictate child custody and/or child support in a prenuptial agreement. These are things the court must decide considering what’s in the “best interest of the child(ren.)”

Prenuptial Agreements and the Law of Severability

The presence of unenforceable terms does not necessarily invalidate the entire agreement, though. In this couple’s case, the court wiped out the first and second paragraphs as “unconscionable and against public policy.” The judge, though, declared that the third paragraph — which covered property division — was still binding.

The court applied an aspect of contract law called “severability.” This concept says that an unenforceable provision in a contract — even one that’s unconscionable and against public policy — doesn’t automatically doom the entire agreement. The law allows the courts to sever — or cut out — the unenforceable part and then enforce the remainder as if it were the entirety of the agreement.

Sometimes, contracts will include a severability clause. This paragraph — usually positioned near the end of a contract — says that should one or more terms become invalid and/or unenforceable as a result of a court ruling, statute, or rule — or become unenforceable for any other reason — then the remainder of the contract is not affected and should still be enforced as written.

Even without an explicit severability clause, a prenuptial agreement can still be severed. A court can sever an invalid provision (and uphold the remaining enforceable portion) if the invalid portion and the remainder are “not so interwoven as to be logically inseparable.”

In this couple’s case, the first two paragraphs dealt with the children and the third dealt with the division of property. As a result, they weren’t inextricably interwoven and the property division paragraph could be separated from the two paragraphs related to the children.

If your pre-marital planning includes a prenuptial agreement, it is essential to ensure that the document you sign is completely compliant with Maryland law and is drafted in a way that will fully meet all your goals. The knowledgeable Maryland family law attorneys at Anthony A. Fatemi, LLC can help you do just that. Our team has extensive experience helping couples get agreements that address all their issues and meet all their needs. Contact us today at 301-519-2801 or via our online form to set up your consultation.

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