Ariel Sosna and Sarah Van Voorhis, Van Voorhis & Sosna
After ten years, celebrity chef, Bobby Flay, and actor Stephanie March (best known for her role on “Law & Order: SVU”) are getting a divorce.
Flay filed his Petition on April 10, citing irreconcilable differences and referencing the parties’ prenuptial agreement. March has gone on the offensive in the media, accusing Flay of having multiple affairs during the marriage.
Through her attorney, March claims that portions of the parties’ premarital agreement are unenforceable. Multiple sources report that the prenuptial agreement provides March with $5,000 per month in spousal support and $50,000 in moving expenses. In addition, Flay can buy out her interest in their $8 million dollar home by paying her $1 million.
According to the Daily Mail, March refused to cash the $5,000 support check she received. According to E! News, March’s attorney is taking the position that the spousal support provision will be found unconscionable.
In California, premarital agreements are governed by the Uniform Premarital Agreement Act (UPAA), (contained within the Family Code at §1600 et seq.), as well as case law. The UPAA allows marrying couples to contract with one another regarding almost anything related to their marriage with few limitations. One of those limitations is spousal support.
Family Code §1612(c) states that premarital agreement provisions regarding spousal support are not enforceable if the party against whom enforcement is sought was not represented by independent counsel at the time of signing or “if the provision regarding spousal support is unconscionable at the time of enforcement.” (See also In Re Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39).
Whether or not a spousal support provision is unconscionable is a question for the trier of fact, and it is dependent upon the facts present at the time of enforcement. See Pendleton & Fireman at 53-54. For example, in In re Marriage of Facter (2013) 212 Cal.App.4th 967, the court found a waiver of spousal support unenforceable where wife had not worked outside the home for sixteen years during the marriage and husband was earning $1 million per year.
While March is a working actor, her income likely does not compare to Flay’s cooking empire. Flay is estimated to be worth $20 million with income from television shows, cooking equipment lines, and restaurants. March might just be angling for a better settlement. However, a court would likely take into account the fact that she did not waive spousal support entirely ($5,000 per month is nothing to sneeze at) and she will receive $1 million for her interest in the house.
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