Scorned Spouse Wishes to Modify Prenup
Earlier today, TMZ reported that Bobby Flay‘s soon-to-be ex-wife, actress Stephanie March, is levying a complaint that the TV chef’s spousal support payments of $5,000 a month for 5 years are not enough. The couple signed a prenuptial agreement in 2005 when they got married, which provided for as much. Under the prenup, Flay also gets to keep the couple’s house, which is valued at around $8 million. However, Flay is required pay March $1 million to buy her out of the house, and she receives an additional $50,000 to assist her in moving.
Flay is rumored to be worth as much as $20 million, much of which has likely been accumulated since his marriage to March, as he as in the interim produced numerous cookbooks and appeared on multiple television shows. March, who has achieved much success on her own on Law and Order: SVU, is believed to have a net worth of around $10 million. Her lawyers are challenging the prenup, and a settlement is likely.
While there are several discussions to be had concerning rights to property obtained by a spouse during the course of a marriage, those debates are usually restrained to instances where there was no agreement prior to the marriage. In this instance, it is a simple matter of freedom to contract.
Even though discussing the importance of “freedom to contract” in courts today will likely result in those lawyers receiving dirty looks and being laughed at, it wasn’t always that way. In 1905, the Supreme Court recognized this right in Lochner v. New York.
In that case, New York had created a law which prohibited bakers from working more than 60 hours a week. Joseph Lochner, the owner of a bakery in Utica, challenged the law as violating liberty interests under the Due Process Clause of the 14th Amendment. Lochner argued that the right to freely contract is one of the rights guaranteed through substantive due process.
The Court ruled in favor of Lochner by a vote of 5 to 4, stating that infringing upon the freedom to contract was not a legitimate exercise of the state’s police powers. Justice Rufus Peckham, in perhaps one of the most libertarian judicial opinions in American history, stated that the court has a duty to determine whether legislation is “fair, reasonable and appropriate,” or “an unreasonable, unnecessary and arbitrary interference with the right of the individual.”
When the Attorney General of New York Julius M. Mayer stated that the state has a “right to safeguard a citizen against his own lack of knowledge,” Peckham retorted that bakers “are in no sense wards of the State,” and that they are able to assert their own rights and care for themselves “without the protecting arm of the State, interfering with their independence of judgment and of action.”
Needless to say, while Lochner has never been explicitly overruled, it has been thoroughly dismantled in recent years, and particularly since 1937. Among many legal academics, it is heresy to suggest that Lochner was correct or that we should return to such jurisprudence. However, it remains that the freedom to contract is one of the most important sacred rights in a free society.
When we contract, we make decisions as to our priorities. We use our best judgment to accomplish the best outcome possible, knowing that the other side is doing the same. It is nearly always the case that one side will come out better than the other, but that is the brilliance of voluntary negotiations. We are able to determine our own outcomes on our own volition.
In this case, Mr. Flay and Ms. March came to an agreement in the circumstances that were present at the time of their marriage. While years later, it may seem unfair that the wealthy and successful Flay can “get away with” fairly minor payments, March should only blame herself. The freedom to contract allows private actors to incorporate into their decisions foresight and deliberation. Determining “unfairness” is not to be done years after the fact; that is to be determined solely at the time of the signing.