Sarane C. Siewerth Contributed to this Blog Post
A big news story recently has been the announcement that Kim Kardashian and Kanye West are expecting a baby together. The announcement is inevitably followed by the statement that Kim is still married to Kris Humphries despite filing for divorce in October 2011 after 72 days of marriage. And then the speculation begins: How much will Kim earn from the pregnancy? It is estimated that fees for photographs taken during the pregnancy and of the new baby, income from lines of maternity and baby clothing, payments for product placements, and other sources of revenue could net Kim up to $15 million dollars from the pregnancy and birth.
Kim and Kris Humphries signed a premarital agreement, according to which neither of them will receive maintenance from the other and both will keep everything they individually earned during the marriage, including the split of the millions received in connection with their wedding. However, Kris is vigorously contesting the agreement, so whether it will control the ultimate property division remains to be seen.
What makes the case interesting comes when Illinois law is applied to its facts. A couple divorcing in the state of Illinois is still considered married until the final decree of dissolution is entered, no matter how long the divorce process takes. Marital property in Illinois is defined, with certain specified statutory exceptions, as all property acquired by either spouse during the marriage, the presumption being that all property acquired during the marriage by either spouse is marital property regardless of how title is held. Non-marital property, on the other hand, is (1) property acquired by gift, legacy or descent; (2) property acquired after a judgment of legal separation; (3) property excluded by a valid agreement of the parties, such as Kim and Kris’ premarital agreement, or (4) property acquired before the marriage. Unless the premarital agreement is upheld, if Kim lived in Illinois, up until the entry of a final judgment of divorce from Kris, the funds she earns as a result of her pregnancy by Kanye would be considered marital property subject to division.
The factors an Illinois court considers in dividing marital property are (1) the marriage’s length; (2) the parties’ age and health; (3) their respective earning capacity; (4) their individual economic circumstances at the time the property division is effective; and (5) the value of the property assigned to each spouse. If we speculate and apply these factors to the Kardashian – Humphries marriage, it is apparent that the length of the marriage prior to the filing of the divorce has been extremely short. Both parties are young and healthy and have significant earning capacity, at least for now. Kim’s pregnancy earnings alone (not considering all the other money she makes from sources such as television shows, clothing lines, etc.) will exceed Kris’ basketball earnings. It is estimated that Kim earned over $12 million in 2012 from her various ventures, whereas Kris’ NBA contract was for a “mere” $3.2 million; her net worth is about five times higher than Kris’. Kim’s pregnancy earnings would be a windfall to Kris if they are ultimately divided between the parties. When one party has substantially more money than the other, courts often order a disparate division of the marital property, giving the party with less property in his or her name more of the marital property.
Illinois is an equitable distribution state, which means, among many other things, that the assets are divided without considering who is at fault in causing the divorce. The fact that the father of Kim’s baby is not her husband should not be relevant to the property split. The funds she earns before the divorce would be considered marital and could be divided if the divorce is not finalized before the pregnancy and birth income begins to roll in. Rumor has it that Kris feels that he now has some leverage to get either more money or some other concession from Kim.
Most people will never be in the position of earning millions of dollars from a pregnancy. However, depending on the provisions in a given state’s statute, any funds that are earned during a marriage, even after physical separation, can be considered marital and divided, including bonuses, lottery winnings, and other income. Those who are unsure if their income or property might be considered marital should consult with an experienced divorce attorney.