I was saddened last week with the news of Bruce and Kris Jenner’s reported separation after 22 years of marriage.
I am not ashamed to admit it, but I am a fan of their amazingly successful television reality series, Keeping Up with the Kardashians. Bruce and Kris Jenner (formerly married to infamous O.J. Simpson lawyer and close friend, Robert Kardashian), were the poster couple of America’s proverbial blended family. They met and married after a whirlwind seven month relationship, and, together, had two children for a total of 10 children between them.
Keeping up with the Kardashians has been running for eight successful seasons. They are the picture perfect reality television series, whose family epitomizes the “famous for being famous” phenomenon.
The headlines read, “Separated after 22 Years!” The even more interesting (although not surprising) reveal, buried by the bylines, was that the couple had been living separate and apart for approximately one year and neither had or was seemingly planning for to file a petition for divorce until after their series’ contract ends in 2015.
Their simple explanation was that “they were just happier living this way!” To divorce attorneys, “this way,” is a direct reference to living separate and apart, which is the key factor in establishing a date of separation in a dissolution matter. The date of separation is critical in a marital dissolution action because it draws the line in the sand, signifying the end of the marital community and the beginning of separate property characterization, or the “what’s mine is mine, and what’s yours is yours” mentality.
Date of separation is established when the parties come to a parting of the ways with no present intent to resume their marriage. The factual question in establishing a date of separation is whether the parties’ conduct evidences a “complete and final break in the marital relationship.”
Case law provides that parties must meet a two prong test to establish a date of separation showing both: 1) intent to end the marriage, and 2) conduct evidencing that intent. Some examples of conduct that suggests there has not been a separation between the parties:
Continuing to live at the same address.
Continuing to engage in a sexual relationship with each other.
Engaging in marital counseling or therapy.
Exchanging gifts, cards, notes or emails that contain the words, “I love you.”
Sending flowers to one another.
Continuing to do one another’s laundry or other domestic duties.
Filing joint tax returns.
Commingling of funds.
Acquiring property together.
This list is not exhaustive, and no one issue is dispositive. As an objective test, the trial court must evaluate all of the parties’ words and actions as the parties’ subjective intent not to resume the marriage. What society at large believes is irrelevant to the analysis. So, even if hundreds of thousands television viewers believed that Kris and Bruce Jenner were acting like a married couple, that belief is irrelevant to the date of separation determination.
The clues in the Jenner separation were there for the world to see: a beach house was purchased for Bruce in Malibu last season, and, at one point, Kris even made reference that she wanted to change her name back to Kardashian. Despite all of the public appearances, family vacations and the television series centered on their marriage, so long as there is a subjective intent to end the marriage by one party, and conduct to support that intent, then separation may be established.
Date of separation cases are almost always fact driven requiring a lot of discovery and often lengthy and expensive trials.
All income and assets acquired are considered community and shared equally until there has been a definitive date of separation. This could potentially be a big issue for the Jenners, considering they will continue to earn money on the lucrative $40 million contract post-separation. In this case, however, it appears that they are handling things amicably, working the separation into the future story line. There is no dispute as to the separation. One article even states they are going to film Kris and Bruce both going on dates with other people in upcoming episodes.
On the show, Kris Jenner is referred to as the momager, managing her family’s successful careers. She has successfully managed her way through sex tapes, paternity disputes, alcohol and drug addictions, long marriages, short marriages and pre-nuptial agreements. There is no doubt that she is also carefully managing her divorce with Bruce. She is smart enough to know that they are worth more to be seen as a happy, albeit separated, couple. In the meantime, viewer audiences, like me, will continue to keep up with the Kardashians’ ongoing family dynamics and issues. Stay tuned.