Post Authored By: Shannon Luschen
When news of Kim Kardashian and Kanye West’s divorce broke headlines earlier this month, discussions began swirling over how the couple would be splitting up their extremely large financial estates. It’s no secret that the pair are extremely wealthy in their own right – according to Forbes, Kanye reached billionaire status and Kim earned $49.5 million last year. With all that money, assets and property, one would hope that Kim and Kanye have an iron-clad prenuptial agreement in place governing their finances in the event of a divorce. Otherwise, absent this type of agreement and under California’s status as a community property state, all of Kim and Kanye’s property and assets accumulated during the marriage could be subject to an equal (50/50) division. With millions, possibly billions, at stake, it is a safe bet to assume that there is a prenuptial agreement in place.
What is a prenuptial agreement?
A prenuptial agreement (a/k/a premarital agreement, prenup) is a legal contract between two spouses that can govern how certain matters are to be handled in the event of a divorce. To put it plainly, a prenuptial agreement can simplify a divorce.
However, not every aspect of a parties’ marriage can be legally governed by a prenuptial agreement or agreed to in advance by the parties. A prenuptial agreement can never settle child-related matters, including child support and custody, as it is not in the child’s best interest. Parents cannot bargain away their child’s rights or interests in any prenuptial or postnuptial (agreement entered into after the marriage), and any provision providing for same is not be enforceable in court.
The types of provisions that are enforceable are those relating to the financial aspects of the divorce. For instance, prenuptial agreements may settle what each party’s interests are in the property owned by either spouse, regardless of whether the property was acquired during the marriage or before. It may also settle how much, if any, maintenance (f/k/a alimony) should be paid to a spouse and for how long such an obligation may continue. So long as the agreement is properly executed by the parties, meaning it was signed voluntarily; is not unconscionable; and each party provided a full and fair disclosure of their assets, courts will honor the provisions contained in a divorcing couple’s agreement.
What could Kim and Kanye’s divorce look like?
While it is only speculation, it is probable that Kim and Kanye have fully and thoroughly settled all issues relating to the division of their immense array of property and assets through a prenuptial agreement. Their prenuptial agreement might contain provisions stating that whatever property and assets each party had at the time of the marriage would remain the separate property of that party and not subject to division upon divorce. It might further state that property accumulated during the marriage (e.g., Kim’s Skims shapeware business) would remain the separate property of the one who started the venture. Bottom line: Kim and Kanye’s finances would likely be settled quickly and efficiently without the need for intensive court intervention. It would also be cost efficient in that the parties would not need to hire various experts (e.g., appraisers of real estate, business valuators, and the like) or engage in lengthy and complex discovery. Such are the benefits of entering into a prenuptial agreement.
The last toss-up in the mix remains the child-related issues. Kim and Kanye have 4 children together – the youngest being 1 year old and the oldest being 7 years of age. The parties will have to find some way to resolve these remaining issues, including settling child support, parenting time and parental responsibilities of their children. Ultimately, these issues will be either fully adjudicated by a judge or, if the parties reach a settlement, expressly approved by a judge.
In light of Kanye’s somewhat erratic behaviors and mental health concerns as of late, Kim could ask a judge to award her sole decision-making responsibilities and parenting time of the children. In analyzing this request, the court may even appoint an expert evaluator to conduct an examination of the parties and the children in order to assist the court in determining whether this arrangement would be in the children’s best interests. In Illinois, this is called a 604.10(b) evaluation. Depending on the circumstances, these issues could be dragged out and extensively litigated by Kim and Kanye. At the end of the day, however, whatever is deemed by the court to be in the children’s best interests will prevail.
Whatever may come, one can only hope that the egotistical, self-centric and unpredictable Kim and Kanye find some way to place their children’s interests above their own.
About The Author:
Shannon Luschen is an associate with Feinberg Sharma in Chicago, which focuses exclusively on family law matters. Shannon received her undergraduate degree at the University of Wisconsin-Madison undergrad and her J.D. at Chicago-Kent College of Law, where she graduated cum laude.