About a year after Kim Kardashian filed for divorce from Kanye West, a judge finally declared her legally single. That ruling, handed down in a California court on Wednesday, should have been perfunctory, but up until now, West had fought to keep it from happening. He’s spent the past few months vowing to “BRING OUR FAMILY BACK TOGETHER” and railing against Kardashian’s relationship with Pete Davidson. (Just hours after the judge’s ruling, West released a music video in which he buries a claymation version of Davidson alive.) But now, Kardashian is one step closer to cutting ties with him for good.
That said, their divorce is far from over, and there are still a number of issues the two have to resolve in court. On Friday, West threw two new problems on the pile: His attorney argued that West and Kardashian’s prenup is “invalid,” potentially setting the stage for a battle over the agreement. And after Kardashian cited West’s Instagram posts, which she said caused her “emotional distress,” in a legal filing, his attorney demanded she prove that West actually wrote those posts, accusing her of “double hearsay.”
To get a sense of how things might play out from here, I called up Cristin Lowe, a California divorce attorney who has worked on thousands of separations. She told me that West’s latest legal maneuver seems like an attempt at delaying the inevitable, and West could drag out this divorce for years if he wants to do so.
VICE: Kanye’s (recently fired) attorney, Chris Melcher, wrote that his prenup with Kim was “presumptively invalid.” (West brought on a fourth attorney, Samantha Spector, right before the hearing on status.) Could you explain the legal argument he’s making in layman’s terms?
Cristin Lowe: It’s not as big of a deal as the attorney is making it sound. What he’s referencing is actually from Barry Bonds’ first divorce. When he married his first wife, he was a minor leaguer, and he was making $100,000 a year. By the time they divorced, he had hit the majors and he was making millions of dollars. He had a prenuptial agreement that had been signed on the airplane on the way to Vegas as they were about to get married. So when it came time for the divorce, his wife says, “This prenuptial agreement is not valid, English isn’t my first language”—she gives all of these reasons. The court ruled against her and upheld the prenuptial agreement because back then, it was presumptively valid.
The legislature then enacted what’s called “anti-Bonds legislation.” What they said is, basically, if you don’t check these boxes, we will presume that the prenuptial agreement is invalid. It has to fail to meet some basic criteria that we are laying out in black and white language. We want you to be represented by independent attorneys. We want a full financial disclosure from both sides. We want a seven-day waiting period from the date of presentation until the date of signing. And essentially, it’s got to be clear that there’s no undue influence, fraud, or duress.
I think [West’s attorney is] using this language to kind of confused, but the reality is I would be shocked if they didn’t follow these checkboxes. They both had attorneys. They both would have done these very basic things.
Do you think that Kanye’s argument is bogus, then?
I would suspect it’s not valid. I think it’s way overblown.
Kanye has been pretty outspoken about the fact that he wants to remain in this marriage. How does that color what’s happening here, to you? Does this seem like it might just be a tactic to drag out the divorce?
That would be my guess: It’s a tactic to delay the divorce proceedings. He’s requiring hearing after hearing. Trying to invalidate the prenuptial agreement would be an excellent way to delay proceedings even further. If he fights about it enough, that is an issue that can go to trial. California court systems are already backed up, and that was pre-COVID. You can imagine how bad it is with the pandemic still going on. They’re still recovering from the last two years. [It could take] a year or longer to get to trial.
After Kim mentioned Kanye’s social media posts in a filing, his attorney called that “double hearsay” and wrote that she needed to prove Kanye actually wrote those posts. Could you unpack that for me?
Hearsay is any out-of-court statement used to assert the truth of a matter. If I am trying to tell the judge, “I heard that person say something,” that person would have to come in and testify that they said it. Double hearsay is when you have two layers of that: “I heard A tell B that they heard something about C.” In context, Kim is saying, “Here’s an example of why I need to be divorced from this man.” And Kanye is kind of throwing a red herring in there saying, “OK, you need to throw that out because, technically, you didn't attach those as exhibits.”
Does that actually constitute double hearsay, in your opinion?
I don’t think so. I’m assuming she said, “I saw the social media post.” That’s technically hearsay because the social media posts happen out of court. If what she’s saying is, “I heard from my sister, Khloé, that Kanye is posting X, Y, and Z about me,” that’s when the double hearsay comes in. But I think Kim’s team will probably just introduce the social media posts as exhibits. If it’s really that big of a deal, they’ll file another plea saying, “Here are all the posts.”
Does this double hearsay argument strike you as just another attempt to delay things?
Absolutely. I mean, the fact that she’s had to appear in court multiple times now for the status termination shows you. Usually, those are one-and-done hearings. Or they don’t even actually get to a hearing because the presumption is there should be a reason to grant it. So why waste the attorney fees? Why waste the time? Just draft up the paperwork, sign it, get it before the judge. There are certain issues that simply aren’t worth fighting over in family court because it’s delaying the inevitable. Now, if your goal is to delay, then that’s the reason to fight.
What are some other things that Kanye might try to do to drag this out?
There are many, many ways you could delay. Discovery is a very common way. Discovery is the formal demanding of documents, whether that is by directly asking Kim for those documents, or deposing her, or subpoenaing third-party records, like bank records, employment records, contracts with TV networks—that sort of thing. All of that takes time. And a trial cannot be set until discovery has been completed. Now, the judge ultimately holds the discretion to say, “OK, enough’s enough, you’ve had two years to get your discovery done. I’m imposing a deadline on you.” But they’re going to give you a substantial amount of time, especially the higher the stakes.
And then custody is probably your number one thing that you could fight over, as far as creating more time, because that is incredibly difficult and requires a lot of third parties and experts.
If Kanye continues to try to prolong the inevitable, what could Kim’s legal team do to try to expedite things?
There aren’t a lot of fantastic tools. At the end of the day, it’s going to come down to attorney’s fees. That’s probably the biggest hammer both Kim and the judge have: “You are creating these delays, you are creating these extra hearings, and you are not doing this for any good reason. Therefore, you’re paying my attorney’s fees.” Every time Kim’s team goes to court, it has to be incredibly expensive.
On top of that, Kim could file a request to put the case in case management, which basically stops either party from filing anything, litigation-wise, on the case. And so the judge has to approve or deny before any hearing gets set. Those are usually more extreme cases. At the end of the day, she could file to call him a vexatious litigant. So basically, if he files enough motions and they’re frivolous, you can come in and say, “He’s a vexatious litigant. He doesn’t get to file any more of this stuff.”
I imagine that’s a pretty extreme measure.
Pretty extreme. Attorney’s fees are probably the most pragmatic, common way of moving the case forward.
If Kanye continues to drag this out, how long do you think it might be before the divorce is finalized?
I would say years. The only issue resolved [on Wednesday] was making Kim and Kanye single. Custody, visitation, property division, debt allocation, the validity of the prenup, spousal support, child support, and attorney’s fees are all issues that remain.
I mean, look at her divorce from Kris Humphries. That took years, and that was, what, a month-long marriage? You can see very clearly how somebody can delay a divorce for years quite successfully. She’s living it again, it seems like.
Drew Schwartz is a staff writer. Follow him on Twitter.