Sherri Shepherd may seem to talk about anything and everything as a co-host of The View, but when it comes to her personal life, she can keep a secret. When Shepherd’s husband, Lamar Sally, filed for legal separation in California, he also requested custody of their child. Although Shepherd has a son from a previous marriage, Shepherd and Sally do not have a child together-yet. Sally’s filing revealed that the couple has a baby due this summer via a surrogate.

Surprisingly, when Shepherd filed for divorce days later in New Jersey, she did not mention the baby. However, she did request that the court enforce the parties’ prenuptial agreement. TMZ reports that the prenuptial agreement includes provisions regarding custody, specifying that Shepherd will be granted full custody of any children of the marriage in the event of a divorce.

Sally is requesting that the prenuptial agreement be invalidated based on “fraud.” He apparently agreed that any children of the marriage would live with Shepherd and her son and that if the marriage lasted between two and five years, he would receive a lump sum payment of $60,000. The agreement lists Shepherd’s annual income at $1 million and Sally’s at $30,000 ($10,000 of which was from unemployment). Invalidating the prenuptial agreement would open the door to substantial financial gain for Sally, so it is not surprising that he wishes to challenge its validity for a number of reasons.

In California, premarital agreements are governed by the Uniform Premarital Agreement Act (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 as long as it does not affect child support or violates criminal law or public policy. In California, a provision in a premarital agreement regarding child custody is a clear violation of public policy.

Even if California throws out the custody provision that does not necessarily mean the rest of the agreement is invalid. Under Family Code §1615, the agreement will not be enforced if executed under duress, fraud, or undue influence, or the parties lacked capacity to enter into the agreement.

Contrary to most contract defenses, §1615 puts the burden on the person trying to enforce the prenuptial agreement (in this case Shepherd) to show that the agreement was voluntary. Though the terms of the Sally-Shepherd agreement do not sound very equitable, Sally will need more evidence than that to overturn the entire agreement in California.

About the authors:

Sarah Van Voorhis, a Certified Family Law Specialist, and Ariel Sosna are founding partners of Van Voorhis & Sosna.