IS THERE A 10 YEAR RULE FOR DIVORCE?
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There is a common misconception that when a couple divorces after more than ten years of marriage, there’s a rule requiring that alimony be paid indefinitely. In reality, there is no “Ten Year Rule.” Here are the facts:
California law (Family Code Section 4336(a)) says that where a marriage is “of long duration,” the court “retains jurisdiction” indefinitely after the divorce is completed, unless the spouses agree otherwise. Retaining jurisdiction means that the court has the ability to continue making decisions about matters between the spouses, and can reevaluate its original orders and modify them if the facts justify a change.
Any marriage that is longer than ten years is automatically considered to be “of long duration,” and sometimes, shorter marriages can be considered lengthy as well.
Setting the Duration and Amount of Support (Family Code §4320 Factors)
A California court determines the amount and duration of permanent spousal support by weighing twelve factors set out in Cal. Fam. Code §4320:
- The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage
- The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party
- The ability to pay of the supporting party, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living
- The needs of each party based on the standard of living established during the marriage
- The obligations and assets, including the separate property, of each party
- The duration of the marriage
- The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party
- The age and health of the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party
- The immediate and specific tax consequences to each party
- The balance of the hardships to each party
- The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties
- Any other factors that court determines are just and equitable
The judge doesn’t have to use the Family Code Section 4320 factors to determine temporary support, so if one spouse is seeking support while the divorce is going on, the judge will likely use a formula set out by the local county to set the amount of temporary support.
In summary, there is no “Ten Year Rule” requiring that support must last indefinitely if the marriage was longer than ten years. However, ten years is an important milestone that may affect the court’s ability to revisit the issue of spousal support later.