Jon minus Kate plus insane divorce laws
“Jon and Kate plus Eight.” “Kate plus Eight.” “Jon and the Other Kate.” If there was ever a time we wanted to shield our eyes from supermarket tabloids, this must be it. Yet, while their story is topping the pop culture charts, it seems fitting to look more closely at it in order to acknowledge not only the emotional wreckage involved, but also the light it sheds on the travesty we call our divorce laws.
In case you are one of the handful of people not aware of Jon and Kate Gosslein’s story, a little background is in order.  This 30-something couple -- self-described Christians -- she a former pediatric nurse and he a former IT specialist, used fertility drugs to conceive twins in 2000 and sextuplets in 2003. After being discovered by the TLC cable network, they became the subject of a weekly reality-television program covering the chaotic activities of their large family. Over the course of four television seasons, viewers were treated to the sight of Kate’s transformation – via plastic surgeries and talented hairdressers – into something of a fashion icon. Viewers could also witness the couple’s marital friction, which, speaking quite generally, consisted of Kate ordering Jon about in a less than gentle fashion, and Jon growing increasingly resentful. In June, 2009, the couple announced their split. Jon now refuses to allow his children to appear on television in a revised program to be called “Kate plus Eight.” All of this created what the New York Times television critic called an “unintentionally brilliant” and “multi-platform” phenomenon. Blogs, talk-shows, and tabloids could not stop obsessing about the details of their behavior.
But now, back to reality. What we have here is a couple with eight children, 9 and under, currently living a terribly expensive lifestyle (a $1.3 million, 6200 square foot house, an apartment in New York, bodyguards, supersized cars, etc.), whose sole income is utterly attached to their union. (Kate has earned income from books, but it’s safe to say that her proposed “brand” of baby clothes and toys could suffer dramatically without a television platform to give them visibility). They are divorcing because Kate felt she had “grown out of” Jon, “was done with him and …no longer wanted to be with him.” She refused to go to counseling, according to Jon, other than to “Dr. Phil,” who apparently urged the couple to “keep their brand intact.”  Practically speaking, this means two or possibly three residences (one for the children, which the parents “visit” according to a custody schedule, and one for each of the parents when they are not at the main house with the children), and two or three sets of utility bills and furnishings. It also means each of them will have to dream up alternative sources of income, although it’s sadly possible that at least until Americans find a new tabloid obsession (say, if Brad and Angie split…), that each parent could get by for a while by sharing the gory details of their misery and the kids’.
Despite all of this, neither Pennsylvania (their home state), nor any other state, has any laws on the books to stop this train wreck from proceeding on schedule. Let’s think about some of the most stunning elements of this in order.
First, Pennsylvania allows “no-fault” divorce. If there is mutual consent, a court can grant a divorce if both allege that the marriage is “irretrievably broken” and 90 days have passed from the filing of a divorce petition. If only one party alleges “irretrievable breakdown,” then the court will grant a divorce after the passage of 2 years during which the parties have lived separate and apart.
Now we know that courts do not take a penetrating look at couples’ situations before granting divorces on the basis of “irretrievable breakdown.” If they did, even setting aside the children’s well-being for a moment, would they really conclude that Kate’s feeling that she had “grown out of” Jon, while overwhelmed by impossible media and public pressure, really meet that standard?
And speaking of the children, are there any “brakes” built into Pennsylvania’s divorce laws for couples with minor children – let alone 8 minor children? No. While divorce reformers have for years suggested special divorce proceedings – complete with delays and mandatory counseling, or allowing fault-based divorce only – for couples with minor children, no state has instituted such a two-tiered divorce law. At best, in Pennsylvania, the court “may require” parents to attend counseling sessions and “may consider the recommendations of counselors,” prior to making its custody award.  In short, divorce law is for the most part responsive to adults’ expressed desires, not the welfare of children.
So what about the kids? How do they factor in? Surprisingly little. In Montgomery County, Pennsylvania, the Gosselin’s “home court,” a court will allow the divorce to proceed according to the statutory schedule no matter how many children are involved. Prior to granting the divorce, the court has only the power to order the parents to 6 hours of a parent education program entitled, ironically enough, the P.E.A.C.E. program (Parent Education and Custody Effectiveness). There they will have an “opportunity to learn about problems that their children may experience as a result of divorce/separation and associated parental conflicts. The program also offers parents an opportunity to learn the necessary skills to keep their children out of family conflicts and helps them acquire new parental skills necessary for rearing children between separate households. With these skills in hand, parents can help their children make a healthy adjustment in a new situation where their parents no longer live together.” 
What about child support? Pennsylvania, like every other state prodded vigorously by a federal government not anxious to part with welfare funds, has a vigorous child support enforcement statute. The statute contains a chart which calculates the support amount depending upon the parents’ combined adjusted net income. The basic chart lists amounts for up to six children. The amount for eight children is literally “off the charts,” (and calculable using a separate provision of the statute), but to give you some idea of the amounts, the figure for eight children for parents netting about $12,700.00 per month is about $3600. The chart amounts are “presumptively valid” for judges who can then adjust them upwards depending upon factors such as fees for health insurance, child care, camps, unreimbursed medical expenses, school expenses, etc. These are additional and large amounts.
Is there anything in law requiring the parties to show that they will be able to support their children after the divorce? There is nothing. It’s difficult in an average divorce for a family to lose the benefits of the “economies of scale” which kick in for a couple sharing a home with children – one mortgage, one set of furniture, one set of utility bills, etc. The Gosselin family is not average, however, not simply on account of its size, but because its union was its income. Furthermore, neither parent is highly educated and neither can likely immediately jump back into their careers with the skill levels required for current employment in their fields. Should both return to work, their child care bills will be whopping to say the least. Still, none of this factors into a court’s decision about whether or not to grant a divorce. Only the question of the parents’ assertions of “irretrievable breakdown” matter.
Jon and Kate’s divorce would appear to be an unusually large train wreck. But in fact it’s only a marginally larger train wreck than any divorce where there are dependent children and not a lot of joint income. Divorce reformers have been pointing this out for decades now. They have moved to the point of introducing bills in various states to slow divorce down or require “fault” justification or mutual consent in some instances.  They recognize that marriage is in trouble and needs social support to help sustain itself. They recognize that the negative fallout for children is real. The law has become a player in the culture of marriage, but thus far, for ill and not for good. The Gosselin disaster movie is a good time to spread the word that it’s time to think about making some real changes. Notes:  Most of my information about the media rise of the Gosselins comes from the following article: Nancy Jo Sales, The Unreal Rise of Jon and Kate Gosselin, Vanity Fair, October 19, 2009.
 See 23 PA C.S.A. 3302, 5305.
 See, Montgomery County Circuit Court, P.E.A.C.E. Program, http://www.montgomerycountymd.gov/cibtmpl.asp?url=/Content/CircuitCourt/Court/FamilyDivision/CoParenting_Program/CoParenting.asp#_What_is_PEACE.
 For a look at a variety of divorce reform efforts, see http://patriot.net/~crouch/divorce.html#anchor9748539 Helen Alvare, J.D. is Senior Fellow in Law at the Culture of Life Foundation and is an Associate Professor of Law at the George Mason University School of Law in Arlington, Virginia. This article was first published by the Culture of Life Foundation and is reproduced here with permission.
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