Kim Kardashian And Kanye West’s Divorce Raises Several Legal Questions

Kim Kardashian And Kanye West’s Divorce Raises Several Legal Questions

Family Law
| 5 min

It was recently announced that Kim Kardashian and Kanye West are to split after Kim filed for divorce in California. The couple has been married for almost seven years, and they have four children. Since their marriage, both of their fortunes have soared thanks to separate business enterprises, and it has been reported they have a prenuptial agreement. 

From a legal perspective, the split raises numerous issues that face all couples going through a divorce. As Kim filed in Los Angeles and lives there, the proceedings are likely to fall under Californian law. How complicated are things going to get?

What are the laws relating to the joint custody of children?

First, an attempt is made to see if the parents can agree on custody or visitation. If an agreement isn’t possible, then the dispute may have to go to trial. Before any trial or hearing, both parents are required to talk to a trained counselor hired by the court. This counselor will attempt to find a solution that suits all parties. If the parents continue to disagree, the counselor will decide based on the ‘best interest of the child’ standard. 

In California, the health, safety, and welfare of the children is the primary factor. Both parents begin with equal rights to custody, and if there is a dispute, the judge will make a decision based on the recommendations of the counselor and the individual case. 

What happens in terms of assets division if there is a prenup but, during the marriage, the two accumulate wealth together while promoting their businesses?

In California, a prenuptial agreement must have been agreed in the state, or parties must file for divorce in the state. It is usual for both parties to be represented by separate attorneys when signing, and there is a seven-day waiting period to allow both parties to review it. It’s consequently highly recommended that both parties consult different family lawyers.

Generally, with a divorce, assets such as property and businesses held before the marriage are known as ‘premarital’, and ‘marital’ assets are those accumulated during the marriage. Different states have differing laws, and California is what’s known as a ‘community property’ state, where all new marital assets or debts acquired by either party are automatically split equally. 

A prenuptial is essentially an agreement on how assets are to be divided in advance. In wealthy and successful couples, a prenuptial would usually keep incomes separate. So existing assets and businesses would be protected, and only assets acquired after the marriage would be affected. Even if, as in Kim and Kanye’s situation, their images and publicity help the other financially, their businesses and incomes would remain independent. Assets acquired together would need to be calculated and split dependent on the prenup if something other than community property is agreed upon.

What happens in custody cases when a child is a result of surrogacy?

There are two types of surrogacy. One is where the surrogate uses her own egg, and one where the intended mother donates one of hers (or a donor’s), and it’s implanted in the surrogate. California is seen as a ‘surrogate-friendly state’ and allows for surrogacy agreements that apply no matter the surrogacy type or sexual orientation of the parents. 

In cases of divorce, depending on the surrogacy agreement, a standard child-custody case usually ensues. Consequently, any couple looking to use a surrogate should seek advice from a legal professional and get a solid surrogacy agreement and custody agreement in place beforehand.

Why is an amicable divorce the most advisable in these cases?

An amicable divorce saves a lot of time, stress and money. In California, an amicable divorce simply means there is no litigation. The spouses negotiate and sign an agreement. 

However, they don’t need to be alone in this, and it is generally recommended that both parties hire their own attorneys. This gives both spouses the advantage of being informed of legal rights and stops a more knowledgeable partner from taking advantage. A neutral mediator is sometimes used, but even then, it is advised that both parties retain separate legal advisors.

Is it advisable to use a private judge? 

Any high-profile divorce is going to be the subject of large amounts of scrutiny and gossip. Kim and Kanye, like Brad Pitt and Angelina Jolie, have a marriage that regularly features in the media. In these cases, attorneys highly advise that the couple pays for a private judge.

These judges usually ensure that financial and personal details are kept private. In cases with children, this extra privacy is crucial. There is still a risk that strategic leaks to the press can occur, but generally, a high-profile family is advised to opt for maximum privacy and use a private judge.

Is it worth hiring a lawyer in these cases? 

Whether the divorce is an amicable one between two childless, equal-earning adults with a prenup or is a split between wealthy celebrities with kids and properties, having legal advice is always a huge benefit. 

Divorces are rarely straightforward and are often stressful, drawn-out and complicated. Each state has different laws, and every split is different. It’s essential for all parties to be fully informed of their legal rights and be advised every step of the way. Couples will always split, and minimizing the pain and impact on families is crucial. Having an attorney is always worth it in these cases.