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Friday, February 20, 2015

What is the 10-year rule for divorce???



Today, I am going to talk about the mythical "10-year rule" in California as it pertains to marriages and divorce.  I have seen and heard a lot of crap as to this, and it's my turn to step up and dispel confusion.

So what does it mean for people who have been married for 9.5 years?  Should you race to a divorce lawyer's office?  What about 11 years?  Are you screwed and paying alimony for life?

Relax.  There is no 10-year rule as it applies to alimony for life, people!!! It's all hoopla over practically nothing.

The ONLY thing the Family Code says is that marriages over 10 years is one of "long duration".  And in such cases, the court retains jurisdiction to modify support indefinitely.  SO....the only thing lasting forever is the Court's power to have a say in this matter.  It does NOT automatically mean that the payor has to pay support forever.

10 years of marriage is also important for Social Security derivative benefits.  If you have been married for 10 years, you may be able to collect benefits from your spouse if 1) you aren't remarried; 2) your earned income benefits are less; and 3) your ex-spouse is over age 62.

Generally, if you are the payor of spousal support in a long-term marriage, here are some tips for you:

1. Always bargain for a termination of jurisdiction date.  I am a fan of bargaining.  It is easier to get what you want from your ex-spouse than a Judge.  Certainly a lot cheaper. If you have been married for 10-12 years, a safe bargain would be half the length of the marriage.  Specify the termination of jurisdiction in the agreement and insert other precise language warning about the termination of jurisdiction.  Courts are extremely busy, and it is not their desire to retain jurisdiction over anything other than they have to. If you have a very specific clause, it will prevent future litigation.

2.  If you can't catch the fly with honey or vinegar, try using Family Code 4320, subsection (l), which states: (l) 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.  You will want to tell the Court that it is the GOAL that your spouse become self-supporting within a REASONABLE period.  You may also want to mention this case, Marriage of Prietsch and Calhoun,  (1987) 190 Cal.App. 3d 645, and quote that Court in saying, "Your honor, in this case, the Court held "the duration of support should be limited so that both parties, where possible, can develop their own lives, free from obligations to each other.

3.  Request a Gavron warning from the Judge.  The Judge will put the payee on NOTICE that she is expected to become self-supporting.  This is very important!  She MUST be put on notice.

4.  Immediately after receiving the Gavron warning, request a Richmond order, setting a specific date jurisdiction of spousal support will terminate.  A Richmond order gives the payee notice that on a date certain, spousal support will terminate, along with jurisdiction (meaning, the Court can no longer extend or award support after this date), UNLESS the payee files a motion prior to that date to extend, and can meet her burden of proof for showing need.  This is a very important request, and unless the payee is elderly and/or has mental/physical problems, should be granted.  I once represented the husband in a divorce. The marriage lasted 37 years, and the woman had a brain tumor.  The Court retained jurisdiction indefinitely in that case.

IF you are the recipient of spousal support, this isn't good news for you. Don't expect to hold out 10 years in a rotten marriage with great hopes of lifetime alimony.

You can, however, bargain for it BEFORE the marriage, with a prenup.


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