As if a typical divorce isn’t hard enough.  Imagine if the custody and support of 8 children were involved?  Such maybe the case with Jon and Kate Gosselin, stars (along with their 8 children) of The Learning Channel’s reality show “Jon & Kate plus 8.”  According to the latest rumors and tabloid reports, Jon has added one more person to the mix: a 23-year old blond co-ed.  Unless Jon has started moonlighting as a late-night French History tutor, it is safe to say their marriage, like many these days, is headed for trouble.  

But Jon & Kate’s situation is not like many.  From a legal perspective their divorce involves many issues not usually encountered in a “typical” divorce.

First of all, assuming the relationship fails because of Jon’s new interest – does this give Kate some advantage if they divorce?

Generally, under current law there is a strong emphasis for “No-Fault” divorce.  As such, marital misconduct (legal jargon for “affair”) has little to no bearing in a divorce.  However, when there is a general rule, there are exceptions to the rule.  One exception would arise if the party who had the affair (Jon) seeks alimony.  In such a case, Pennsylvania law (which would be applied in Jon & Kate’s case) provides that such misconduct is a factor for the court to consider in determining alimony.  In other words, if Jon is asking for alimony from Kate then a Judge could reduce any amount he would receive or deny Jon’s request altogether.  However, an exception to the exception could arise if Kate also was guilty of misconduct (the body guard?) or condoned or approved of Jon’s affair (rumors say the parties have such a clause in a contract).

In reality, marital misconduct, although a factor per Pennsylvania Law, generally carries little weight in the court when determining an alimony award.  With very few exceptions, marital misconduct only becomes a factor when the misconduct has financial consequences.  Usually this arises when one spouse decides to spend marital funds on their other interest, say by taking a trip to Maui.  In those cases the innocent spouse certainly has a claim to be reimbursed for such “wasted” marital funds.

But Jon’s conduct may have more severe consequences. How about the canceling of the television show?  This is a family business after all.  And not an insignificant one.  It is estimated that Jon & Kate earn $65,000 per episode.  In a 20-episode season that amounts to $1.3 million per year on the show alone.  Further, Jon & Kate reportedly charge $25,000 per speaking engagement.  A modest estimate of one engagement per week earns them another $1.3 million per year.  Add the substantial income they make selling autographed pictures at the engagements, plus the perks they receive for free ( Kate’s tummy-tuck, Jon’s hair plugs, a chef cooking for the family, free meals, toys, home renovations, clothes from sponsors, vacations to Hawaii, etc.) a conservative estimate puts them easily over $3 million per year. 

So if Jon’s conduct leads to the divorce which in turn leads to the cancellation of the show and the speaking engagements, which have been the sole sources of income for Jon, Kate and their 8 children, is Jon on the hook for that?

Under Pennsylvania law the court must equitably divide marital property without regard to marital misconduct in such percentages and in such a manner as the court deems just after considering all relevant factors.

At first glance it seems to appear that Jon may be off the hook completely. 

Pennsylvania law, however, requires the court to further consider the dissipation of each party in the depreciation of marital property.  A strong argument can be made that Jon’s actions led to the dissipation of the family business (which is marital property).  If so Kate should be walking away with the lion’s share of the estate.

But hey, I’m sure Jon can find a few more students to tutor. Keep your popcorn ready for this tabloid bonanza. Next issue: Who gets the kids?

The high profile of Jon and Kate provides the public with a unique opportunity to explore issues that arise in contested divorce cases. Through this ongoing series I will offer comments and analysis of the proceedings and provide insight on how developments in Jon and Kate’s case may occur in other divorces.  I am a Pennsylvania divorce attorney who is not involved in the Jon and Kate matter and the comments I present in this blog series are not case specific but rather intended to provide the public with helpful information on Pennsylvania divorce law.