Possible Jon & Kate Divorce Could Be Very Complicated

The American media has been abuzz for several weeks about the marital problems of Jon Gosselin and Kate Gosselin, stars of TLC’s reality series, “Jon and Kate Plus Eight“. Tabloids have alternately accused Jon of cheating with a 23-year-old woman and Kate of cheating with her bodyguard. The couple certainly doesn’t help matters with their near-constant, on-camera bickering. Yesterday, I read a piece which claimed that Jon did a phone interview with People magazine from a New York divorce attorney’s office.

So, what would the potential divorce of these two entail? Ultimately, any Gosselin divorce would cover exactly what typical divorces do. Their marriage would be legally terminated. They would divide their assets and debts. They would have a custody and visitation order. There would be child support and possibly spousal support. The variables in this case, though, are obvious.

The Gosselins live in Pennsylvania. Pennsylvania, like most states, has a no-fault divorce option although an at-fault divorce can still be pursued as well. The grounds for at-fault divorce in Pennsylvania are abandonment for more than a year, adultery, endangerment of a spouse’s life or health, bigamy or imprisonment for more than two years. Fault, though, plays no role in the division of property and a very limited role in the award of spousal support. So, it would be unnecessary for either Jon or Kate to allege adultery or any other at-fault ground to obtain a divorce.

The division of property in Pennsylvania is achieved by equitable distribution – a division which is fair under the specific circumstances of the case. In this situation, it will likely be “fair and equitable” to provide the party with physical custody of the kids a slightly greater than 50% share of the marital assets.

Property division, of course, can be affected by the existence of a prenup. It would be very surprising though to discover that Jon and Kate have a prenuptial agreement, as they were young when first married and years away from fame and fortune. They now have a $1 million dollar estate and, presumably, substantial marital assets as a result of the television show and other related appearances. If any of the assets have been placed in trust for the children, those assets may or may not be distributed to the parents in the divorce (it would depend on the language of the trust agreement).

Based solely on Kate’s personality as portrayed on the television show, I would be very surprised if she agreed to a shared custody arrangement of the children. I would anticipate joint legal custody, primary physical custody of the kids to Kate with regular visitation with Jon. There is certainly no law that gives preference to Kate as the mother – this is just my speculation based on their behaviors on the show.

I would foresee the stickiest issue in any potential Gosselin divorce to be support – child support and spousal support. Although Pennsylvania, like other states, has established Child Support Guidelines to calculate appropriate levels of support, the Gosselin case would probably not use those guidelines for two reasons. First, the guidelines do not anticipate families with eight children. And second, the guidelines only deal with families who make up to $15,000 per month. Instead of performing a simple calculation, the court would have to determine what the children’s “reasonable needs” were. With eight children and a modicum of fame, determination of those “needs” may not be so simple.

The Gosselins reportedly make $75,000 per episode (and TLC recently ordered 40 more episodes to be made). Jon no longer works outside the home. So, if he were to be ordered to pay child support, the major question would be “what is his income going forward?” If TLC continued the show, filming the story of a divorced couple with eight kids, then the answer would be easy. If the show goes away with the marriage though, Jon no longer makes half of $3,000,000 a year. The court would have to determine his earning capacity in order to set a child support amount.

As Kate seems to be the more media-savvy spouse, I could see her parlaying her fame into continued appearance and book income, even without a show (or selling the idea of a reality show following a single mom with eight kids). Still, her income may not be regular or conducive to speculation and imputation.

All of which brings us to spousal support. Traditionally, spousal support (or alimony or maintenance, depending on your jurisdiction) is awarded to a wife with a lesser-income-producing-capability. Here though, it is very possible that Kate is able to out-earn Jon, post-divorce. In Pennsylvania, alimony (when ordered in a case along with child support) is set at 30% of the difference between the net earnings of each party. If the spouse requesting alimony is found to be “at-fault” for the divorce, alimony can be denied.

So, interestingly, Kate has the potential to be the greater earner and Jon has the potential to be denied alimony due to his alleged adultery. However, if Kate were to negotiate a new “single mom” show, a joint legal custody order would likely require Jon to okay any appearance of the children on the show – this would obviously be a negotiation strength for him in any settlement negotiation or mediation.

I’m sure that Jon Gosselin will hire an aggressive attorney to combat Kate in any possible divorce action. He’ll need all the help he can get – based on Kate’s personality as depicted on the show, I don’t see her letting any of this occur quietly or without a fight.