Family Law Corner: Keeping Up With Khloe's Divorce

It was surprising when reality television star Khloe Kardashian and former NBA star Lamar Odom called off their divorce after Odom was found unconscious in a Nevada brothel, apparently from a drug overdose. The divorce was all but finished when Kardashian rushed to the hospital to make medical decisions for Odom, who had suffered multiple strokes and organ failure. They had submitted their judgment for dissolution in July of this year, but due to a backlog in L.A. county, media outlets reported that processing typically takes five months or longer. While overseeing his medical care (since they were still married), Kardashian and Odom signed and filed a request to dismiss their divorce, without prejudice.

Had it not been for the backlog of judgments that the court had not processed, Odom and Kardashian would already have been divorced at the time of his overdose. Their unorthodox decision to dismiss their divorce at the last minute raises legal questions. Kardashian stated on October 28 in a People magazine interview that she is not reconciling with Odom: “It’s out in the media that we are back together, but I wish people understood that’s not in our thought process right now.”

There were further reports that Odom was still on Kardashian’s medical insurance, which could explain why they dismissed the action; however, he could have stayed on her plan through COBRA. The legal “risk” of dismissing the action appears to fall on Kardashian.

It is unlikely that Odom will be able return to his basketball career if he experienced permanent physical damage, and that raises questions about his earning ability going forward. If he can’t support himself, his financial security may fall on Kardashian if they subsequently decide to divorce. Even if their premarital agreement (reported by TMZ to exist) waives or limits spousal support, a California court may find that waiver to be unenforceable.

Under Family Code §1612 (c), any provision regarding spousal support in a premarital agreement is not enforceable if it “is unconscionable at the time of enforcement.” The question of whether it is “unconscionable” must be decided at the time the court is presented with the issue.

The most recent case that has addressed this issue is In Re Marriage of Facter (2013) 212 Cal.App.4th 967. There, the court found the spousal support waiver to be “unconscionable” where the husband was a Harvard-educated attorney with considerable assets and the wife was a high school educated, unemployed stay-at-home mother with few assets at the time of the divorce.

If Odom is disabled or unable to work and has comparatively few assets, then it is possible that a court could find the waiver of support unconscionable and therefore unenforceable. While Kardashian’s stance to dismiss her divorce is being heralded as romantic and compassionate, it could result in financial consequences that Kardashian did not intend.