Flipping a Chef’s Prenup

According to this article, as part of her pending divorce action with chef Bobby Flay, actress Jennifer March, intends to challenge the prenuptial agreement which could otherwise limit what either March or Flay would be entitled to receive incident to a divorce or the death of a party.  Through a prenuptial agreement, parties decide what will happen in the event of the death of one of the parties or in the event of their separation or divorce.  The purpose of a prenuptial agreement is to address these issues in a way that differs from what the law would otherwise provide.  In a divorce context, the parties can decide to include or exclude certain assets from division; they can also decide who gets what either by asset or by percentages; they can decide whether or not someone is going to receive alimony or other financial support.  Basically, as long as the terms of the agreement are not contrary to public policy, the parties can agree to anything that they want.  For example, as reported in that article, it appears that Flay and March agreed in their prenup that he would be obligated to pay her $5,000 per month. It is also possible that they could have agreed that there would be no payment of alimony or support in the event of their separation or divorce.

The aspect of this article which I wanted to home in on was the statement, “March is challenging the prenup on the grounds that Flay allegedly cheated on her with three women, including actress January Jones.” This, of course, raises the question, in what situations can a prenuptial agreement be challenged or set aside. If March’s challenge is successful, then the entirety of the agreement is thrown out and the law where this divorce action is taking place controls. Obviously, March believes that she would receive more from Flay as part of the divorce if the prenuptial agreement were set aside. Otherwise, she would not bother.

Under Pennsylvania law, a prenuptial agreement can only be set aside in very limited circumstances – only in two situations, actually.  If someone wants to challenge a prenuptial agreement in Pennsylvania, that person must convince a court by clear and convincing evidence that

1. the person challenging the agreement did not execute it voluntarily  OR
2. before the agreement was signed,
   1. the person challenging the agreement was not provided with “a fair and reasonable disclosure of the property or financial obligations of the other party”;
   2. the person challenging the agreement did not voluntarily and expressly waive, in writing, the right to such financial disclosure; and
   3. the person challenging the agreement did not have adequate knowledge of the property or financial obligations of the other party.

In other words. under PA law, If March was not able to show that she did not sign the prenuptial agreement voluntarily, she would need to prove that she did not know the extent of Flay’s assets, she was never provide the information about his assets, and she did not, in writing, give up the right to know about his assets. If she were to only say, as her pen glided across the signature line of the agreement, “I am so in love, I trust him and I don’t need to know about his assets.”, that would not be enough under PA law. Such a waiver was not in writing.

Note that there is nothing in the law in PA which allows for a prenuptial agreement to be set aside because it is a bad deal.  A party can agree to give up all rights that would arise as part of a divorce, primarily the division of assets and alimony, if that party so chooses.  There is also no requirement that both parties have attorneys.

Based on the quote above, it appears that March is conditioning her challenge of the prenuptial agreement on alleged adultery. However, as the article mentions, there is no known “infidelity clause” in the March-Flay prenuptial agreement. When such a lifestyle clause is in an agreement, it becomes a required condition for some other aspect of the agreement. For example, “If Flay commits adultery, March will receive $10,000 per month in alimony; if March commits adultery, Flay will have no obligation to pay alimony.”  This language actually sets forth 2 lifestyle clauses – each taking into consideration what happens if either party commits adultery.  States may vary as to whether such provisions would be enforceable.

Based on the limited information presented in this article, it does not seem likely that, if this were a Pennsylvania case, March would be able to set aside the prenuptial agreement. There is no indication in the article regarding the failure to provide financial disclosure. Without that failure, this prenuptial would be as solid as one of Flay’s cast iron skillets.