Based on Nas and Kelis: Divorce Q and A

The announcement today that musicians Nas and Kelis are embroiled in a bitter divorce battle puts a public face on issues that ordinary divorcing Americans face regularly.

1) Does pregnancy affect spousal support? Yes, it can. Spousal support is meant to ensure the self-sufficiency of each spouse, providing a payment to whichever spouse cannot maintain himself or herself for whatever reason. The duration is often limited to the time it takes each spouse to achieve that self-sufficiency. In the case of pregnancy, it is relevant that Kelis is pregnant because she cannot work due to her condition. As such, she lacks the ability to earn a living, so spousal support from Nas seems appropriate.

2) Does someone have to work if he or she is able? The court will not actually force a person to perform labor, as doing so would amount to involuntary servitude, which is unconstitutional. However, a court can ascribe to a person the wages that he or she would earn if employed full-time at an occupation for which he or she is skilled. An Oregon case involved an anesthesiologist who tried to circumvent spousal support by claiming that he was going to raise llamas instead. The court assessed his support payments based on his doctor salary instead.

3) Nas wants Kelis to pay her own lawyer’s fees. What is typical? People usually pay their own attorney fees out of their share of the marital property. Some couples pay their collective attorney fees from the marital property before dividing the remainder into the husband’s share and the wife’s share. Still others wait for a court to order a payment of a certain amount of money to fund the lower-earning spouse’s attorney fees.

4) Both Nas and Kelis are seeking joint custody of their unborn child. Can they obtain it? Some states allow a court to award joint custody to both parents or sole custody to either parent but do not express a presumption for joint custody or sole custody in their statutes. Other states apply a presumption in favor of one or the other, usually in favor of joint custody in those states that have any presumption at all, but permit a judge to depart from that presumption if it is rebutted by the evidence. Other states, such as Oregon, actually prohibit joint custody unless both parties agree. However, if Nas and Kelis’ case were litigated in Oregon or a similar jurisdiction, the court could order joint custody because both parties to the case have expressed a mutual desire for joint custody.

5) Kelis has filed for divorce based on “irreconcilable differences,” but if rumors of infidelity are true, does the outcome of the divorce change? No. All states except New York have a form of no-fault divorce, which means that the fault of either party is not relevant to whether a person is entitled to a divorce. Neither is it relevant to the determination of property division. Whether someone has been unfaithful or whether a spouse simply does not want to be married any longer, a divorce will be granted in a no-fault state.