Khloe and Lamar's Prenup Problems

The Kardashians can't seem to stay out of family law news. Last week, we blogged about the male model claiming to be the biological father of Kourtney Kardashian's son, Mason. This week, the tabloids are buzzing with news of Lamar Odom's drug problem and separation from Khloe Kardashian.

But, while Kourtney's paternity scandal may have been just a bunch of smoke and mirrors, the allegations against Mr. Odom appear to be much more serious...and seemingly true. It now appears that Lamar Odom will not be re-signed by the Los Angeles Clippers due to his drug problem. And last Wednesday, Khloe threw Lamar out of their home after he refused an intervention.

According to TMZ, Khloe has made it clear that Lamar must get help or accept the intervention, otherwise their marriage is over. Later the same day, TMZ reported that Lamar had returned home, but was still refusing treatment, leaving the issue of separation unclear.

Although sources are saying that neither party has consulted with a family lawyer regarding a potential divorce, a pre-nuptial agreement signed by the parties may mean that there is little to fight over...at least in theory.

TMZ is now reporting that the former couple signed a "hard-fought" prenuptial agreement addressing issues that may arise on separation, and specifically matters relating to property owned by Lamar and Khloe prior to marriage.

In Ontario, prenuptial agreements are referred to as "Domestic contracts" or "Marriage Contracts." Although details of the agreement have not been leaked, there are a number of issues that can arise with the enforceability of such contracts.

First, s. 52 of Ontario's Family Law Act (FLA) provides that spouses or prospective spouses may enter into a marriage contract with respect to property, support obligations, the right to direct the education and moral training of their children, or "any other matter in the settlement of their affairs." Terms relating to custody and access of the children of the marriage following separation of the parties, on the other hand, are unenforceable. Moreover, a marriage contract cannot determine or limit a spouse's right to possession of the matrimonial home following separation. Similarly, subsections 56(2) and (3) make "chastity clauses" in domestic contracts unenforceable.

Pursuant to s. 51 of the FLA, a "marriage contract" is a "domestic contract." Subsection 56(4) of the FLA permits a court to set aside a domestic contract in a number of enumerated circumstances. For example, a court may set aside such an agreement if either party failed to disclose to the other any significant assets, debts or other liabilities existing when the contract was made. Similarly, an agreement may be set aside if either party did not understand the nature or consequences of the domestic contract. A lack of independent legal advice may also cause an agreement to be considered unenforceable by the courts.

So, while Khloe and Lamar may have intended to determine issues relating to property division in their prenuptial agreement, a failure to abide by any of the abovementioned rules may cause significant problems when it comes time to divorce.

Moreover, given Lamar's substance abuse issues, he may attempt to argue that he did not understand the nature or consequences of the contract, calling into question the enforceability of its provisions. While only time will tell how Khloe's and Lamar's marriage will unfold, the Kardashians' supposition that all matters have been finally determined by the prenuptial agreement might be a touch naïve.

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