There are a lot of misconceptions about the impact that the length of your marriage will have on your divorce, particularly on the length of time spousal support should be paid. Clients who may need to pay spousal support often ask, “I’ve been married nine years and nine months, should I rush to file for divorce?”
People have “heard” that there is a rule that if you have been married for fewer than ten years, spousal support will be ordered for half the length of the marriage. They have also heard that there is a rule that if you’ve been married for more than ten years, spousal support lasts forever.
Neither of these things is true.
If you have been married for fewer than ten years, there is an assumption that it takes half the length of the marriage for the supported spouse to become self-supporting. This is not a rule. It is an assumption that may or may not be true, so therefore not always applicable, and which brings up lots of questions. For example, what does self-supporting mean, anyway?
If you have been married for more than ten years, the assumption simply goes away. It does not mean that spousal support goes on forever, but it does eliminate the handy guideline. The reason it appears to suggest that spousal support is ongoing is that, if you submit the issue of spousal support to litigation, a court, in a 10+ year marriage, is not permitted to put a termination date on a spousal support order that it makes as part of your Judgment of Divorce. It can only terminate spousal support after enough time has gone by since the divorce Judgment such that there is clear evidence that the supported spouse is financially stable without the spousal support.
If you have been married for one month shy of ten years, or ten years plus one month, why should that “cutoff date” make such a difference? Even judges have discretion to make orders that are reasonable. Spousal support duration should be tied to something logical, like expectations for full time employment, the intention to move to another state where the cost of living is lower, the kids all graduating from college, and so forth.
You have the opportunity in Collaborative Divorce to create your own rules. These rules should make sense to both you and your spouse, should be rational, and should relate to your own situation.
So no, if you both enter into a Collaborative Divorce process in good faith, don’t rush out to file for divorce or panic if you are on either side of the “ten year” marriage. Trust that you and your spouse can create an appropriate agreement that doesn’t depend on a knee-jerk reliance on rules that may or may not be true.
Jennifer Jackson, JD is an attorney practicing in San Francisco and Sonoma Counties. More information in her bio on the “Find A Professional” page.