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spousal support and the 10-year rule

By Law Offices of Rod Firoozye Published:  Jul 17, 2004

I was recently listening to a radio morning show when one of the listeners raised the issue of spousal support and the so-called “Ten Year Rule.” This listener recommended that a previous caller divorce his wife before ten years, otherwise because of the “Ten Year Rule,” he would have to pay her alimony indefinitely. Immediately, numerous other callers began calling about this rule and stating their understanding of it. I was quite surprised about the local audience’s misconceptions about this matter and spousal support in general.

The General Concept

California law specifically states that “Except upon written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration.” Cal. Fam. Code §4336(a).

Retaining Jurisdiction: in this aspect means the courts ability to reexamine its’ initial order of spousal support, modify it, extend its’ duration, or reissue it.

Long Duration: Any marriage that is longer than Ten-years is presumed “lengthy.” However, under limited circumstances even shorter marriages may be deemed “lengthy.” The courts have discretion to determine–without the aid of a presumption — that shorter marriages are “lengthy.” [See Marriage of Heistermann (1991) 234 Cal.App.3d 1195 – retention of jurisdiction rule “can, under proper circumstances, apply equally to a medium length marriage” (8-year, 11-month marriage)].

A Few Examples

The easiest way to explain the above law is to give two examples.

Jill & Jim were married for 6 years. They go through Family Court, and eventually Jill receives a support award in the amount of $500 for 3 years. The court then states that its’ jurisdiction would also terminate after 3 years. Therefore, if Jill were to lose her job or get sick during the next three years and request that the court increase her support amount (which tends to happen quite often), then the court may do so – but only during those 3 years. After the 3 years, the court cannot modify or reissue spousal support for Jill (the court no longer has “jurisdiction” to award spousal support).

Now say Jill & Jim had been married for 12 years. She receives the same amount, this time for 6 years. However, since Jill & Jim have been married for more than 10 years, the court will presume this marriage as a “long-term” marriage and retain jurisdiction to modify this support amount. Under these circumstances, the court may retain jurisdiction indefinitely (until Jill remarries or passes away). Therefore, if Jill got sick the month before her support is to end, she can ask the court to extend the duration of support and even ask for a higher amount of support.

Setting the Duration and Amount of Support (FC §4320 Factors)

When a court determines the amount and duration of permanent spousal support they would have to weigh twelve factors mentioned in Cal. Fam. Code §4320 (The following is for general reference only you do not need to read it all):

(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage; (b) 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; (c) 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; (d) The needs of each party based on the standard of living established during the marriage; (e) The obligations and assets, including the separate property, of each party; (f) The duration of the marriage; (g) 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; (h) 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 where the court finds documented evidence of a history of domestic violence, as defined in Section 6211, against the supported party by the supporting party; (i) The immediate and specific tax consequences to each party; (j) The balance of the hardships to each party; (k) 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; and (l) Any other factors the court determines are just and equitable.

You may have noticed in the previous examples that in both scenarios, Jill received an award for support for half the length of her marriage. In circumstances where the marriage lasted less than ten years, it is “reasonable” (and quite common) for a court to set the duration of support at half the length of marriage, but that does not mean that the court must set the amount exactly at half the length of marriage. With marriages that last longer than ten years, the half the length of the marriage formula may not be followed as commonly, and the court may weigh the factors listed above to determine the duration of support.

So why did an attorney tell me that I would have to pay X amount of spousal support before we even went to court? How did he figure out this amount using all the factors listed above?

If an attorney gives you an exact number for spousal support, in all likelihood he is using a computer program to determine the exact amount of spousal support payable. However, even though using these programs for determining child support are valid, these programs can only be used to determine Temporary Spousal Support not Permanent Spousal Support.

Temporary Spousal Support: Support that one party pays the other while the divorce proceedings are not finalized and only until final judgment of divorce. Temporary Support is usually only determined by the parties’ current gross incomes alone.

Courts cannot rely upon computer formulas to determine the amount of Permanent Spousal Support they must weigh the factors listed in Fam. Code §4320. Therefore, an attorney who tells you the exact amount of your spousal support payment, is likely discussing temporary support only. The final amount of permanent spousal support determined by a court, might be quite different from the amount of temporary spousal support.

Conclusion

The Ten Year Rule is not a magical number that states that a court will automatically award spousal support with indefinite duration. The duration of support would be determined, based on the circumstances of each case. However, ten years is important, since it may affect the court’s ability to revisit the issue of spousal support again, and reissue or change the amount of support – ABSENT any agreements between the parties regarding this matter.