The wife of celebrity chef Bobby Flay does not want the couple’s premarital agreement to be enforced in their upcoming divorce. However, under Texas law, she would probably lose.

Stephanie March, an actress who has appeared on Law & Order: Special Victims Unit, married Flay 10 years ago. The couple signed a premarital agreement which, upon divorce, would give March $5,000 per month in spousal maintenance, plus $1 million in exchange for the marital residence. According to this article on TMZ, March’s lawyers do not believe these provisions are enforceable. Flay, soon after filing for divorce, sent his first $5,000 maintenance check. According to the same article,

“Stephanie’s lawyer returned the $5,000 check, along with some choice words — “We regard the support provisions of the

pre-marital agreement as unenforceable (not to mention morally reprehensible).”

March and her lawyers believe that Flay is worth at least $20 million, and that March was a big part of his success. Further, the marital residence is now worth approximately $8 million. If all of this is true, this certainly seems like a bad deal for March.

Defenses to Enforcement of a Texas Premarital Agreement

If the premarital agreement was drafted under Texas law, it would not matter if the premarital agreement turned out to be a bad deal for a spouse upon divorce. In Texas, the defenses to the enforcement of a premarital agreement are limited to the following:

1. The party did not sign the premarital agreement voluntarily; or
2. The agreement was unconscionable when it was signed and, before signing the agreement, that party;
   • Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
   • Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
   • Did not have, or reasonable could not have had, adequate knowledge of the property or financial obligations of the other party.

If a party is relying on the unconscionability defense, as March seems to be doing, it is important to know that the premarital agreement would have to be unconscionable when it was signed, not at the time of divorce. To use the Bobby Flay example, if $1 million was a fair buyout price of his wife’s interest in the house at the time of signing, and $5,000 was a fair amount of spousal maintenance, March’s argument fails.

Additionally, even if the agreement was unconscionable at the time the parties signed the agreement, it will still be upheld unless the spouse challenging the premarital agreement can prove a lack of disclosure. The lack of disclosure prong consists of three items. First of all, March would have to prove she was not provided a fair and reasonable disclosure of the property or financial obligations of the other party. However, even if she was not provided such disclosure, she would not prevail if she waived disclosure. Even if she did not waive disclosure, she would not prevail if she did not have, or could not have had, adequate knowledge of Flay’s property or financial obligations.

In Texas, premarital agreements are very difficult to set aside, and they are presumed enforceable unless proven otherwise. If the premarital agreement between Flay and March was enforced pursuant to Texas law, March would have a very hard time trying to set aside the agreement, since she would not be eligible for spousal maintenance under Texas law. Therefore, she would not be able to prove the agreement is unconscionable.

It is likely that her claim that the agreement is unenforceable is a tactic designed to lead to settlement. That way, she may be able to get more than what is in the agreement, and Flay could save in attorney’s fees by not litigating the issue. It makes you wonder what would happen in the premarital agreement had a clause stating that the party that unsuccessfully challenges a premarital agreement pays attorney’s fees to the prevailing party.

If you have any questions about spousal maintenance or premarital agreements, contact me at VernerBrumley. I can be reached by phone at 214-526-5234 or by email at [email protected]. VernerBrumley’s principal office is located in Dallas, Texas.