Divorce and the 10-Year Rule

Divorce and the 10-Year Rule

Divorce 10 Year Rule: I just had another caller today whose husband is trying to file a divorce at 9 years, 6 months.  She is frantic and trying to figure out how to stop it because she thinks it has something to do with alimony and how she can’t get it for life now.

Relax!  The 10-year-rule is much ado about nothing.  Let’s find the text of the California Family Code that states anything about 10 years.  Ah…here it is, Family Code 4336.  Section b. It states, “For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this
subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration.”

ALL this means is that in a long-term marriage, the court will retain JURISDICTION over the issue of spousal support.  It does not say that if marriage went over 10 years, the payor must pay alimony for life.  But wait!!! The code ALSO states that nothing precludes a court from finding a marriage of less than 10 years is a long term marriage!!

I had previously written a blog post containing tips for bargaining for alimony (spousal support) when you are the payor.

Here are tips when you are the RECIPIENT.

  1. Jurisdiction to remain open.  Do NOT ever agree to terminate jurisdiction.
  2. Remember, alimony is taxable to you.  It’s also tax-deductible to the payor.  Use this to your benefit and remind the payor he gets a huge tax benefit.  Give him this article, “Make Alimony Your Friend“.  However, since this post, Trump passed a new Tax Act, which now makes alimony NON-deductible to payors, and NON-taxable to recipients after December 31, 2018.
  3. Though Gavron and Richmond warnings aren’t good for you, it’s not the end of the world.  If you are subjected to a vocational exam, make the most of it.  Use it as a career counseling session.

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.

It is very scary to have to support yourself after a long-term marriage.  But many of my clients who have ended up retraining themselves and putting themselves in the work force actually report back with good news.  Several of them feel relieved at being financially independent.  And several report that the new job/career has helped them move on.

On that note, I command you all to fear not the 10-year rule!  Speaking of 10 years, I celebrate 10 years of marriage to my law firm.  Thank you to the truly wonderful clients I have had the pleasure of helping.  I do not take for granted how our paths have crossed, and I feel privileged to be able to help you to the other end of this dark, dark tunnel.

Here is to an awesome 2018!!!

 

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Kelly Chang Rickert

Kelly Chang Rickert (formerly Kelly Yi-Yi Chang) is the founder of the Law Offices of Kelly Chang, A Professional Law Corporation, a firm dedicated exclusively to Family Law. She has been certified by the California State Bar Board of Legal Specialization as a Family Law Specialist. She is frequently quoted in the media, and is a legal expert for Style Network, TV Guide and MTV on Mel Gibson, Tiger Woods, Britney Spears, Christie Brinkley and Madonna divorce and custody cases.

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