If you are going through or have gone through a divorce in California you’ve probably figured out that the length of marriage becomes very important and can become a hotly contested issue at divorce time. While the length of marriage is relevant for a number of issues in divorce litigation, there is special and controversial significance in relation to spousal support. This is because, under the family code, the future of spousal support may follow a very different course once a marriage hits the 10-year mark, as opposed to a marriage that lasted less than 10 years. This particular magic number comes into play because under the family code, a marriage of 10 years or more is presumed to be a marriage of “long duration” (more commonly referred to as a long-term marriage). (FC 4336)
Albeit the fact that this is now old news, you may recall the Nicole Kidman and Tom Cruise divorce back in 2001, the couple separated right after their 10th anniversary. However, Cruise immediately began arguing that the marriage had ended before that, after 9 years and 11 months to be precise. Why? Because Cruise, worth about twice as much as Kidman, was trying to avoid the spousal support presumption for long term marriages.
For a marriage lasting more than 10 years, the laws regarding spousal support change. Specifically, for a marriage lasting 10 years or more, the family court retains INDEFINITE jurisdiction over the issue of support. Contrast that with marriages of less than 10 years, where the presumption is typically that spousal support jurisdiction terminates after ½ the length of the marriage. To illustrate, if we have a marriage that lasted 9 years, it is presumed that support will end and the court will no longer have jurisdiction to order any more support after approximately 4.5 years. However, if we have a marriage that lasted 10.5 years, then that presumption goes away, and the court instead retains jurisdiction to extend spousal support indefinitely, until it determines that the supported spouse has become “self-supporting.”
To be clear, this leads many to the misconception that just because a marriage has lasted over 10 years, that spousal support will continue forever. No; Indefinite jurisdiction does not mean infinite support, although, it does mean that such an outcome is possible where it would not have been possible for a marriage lasting less than 10 years. For a marriage lasting over 10 years, the judge cannot automatically presume that half of the length of the marriage is the proper amount of time for support. Having indefinite jurisdiction means that the parties can request a modification of the support terms any time that there is a material change in circumstances. Typical termination language for a long term marriage is that support continues until death of either party, remarriage of the supported spouse, or upon further order of the Court.
Permanent spousal support, or the support ordered at the time your divorce is finalized, is based on what is referred to as the “4320 factors.” Family Code section 4320 lists a number of factors that a judge has to consider when making a permanent support order. No two cases are the same, and judges have A LOT of discretion when it comes to deciding the amount of support ordered using these factors. These factors include the parties’ incomes and the standard of living that the parties enjoyed during the marriage.
It’s hard to feel bad for Cruise and Kidman, who ended up settling their divorce and $350 million estate on their own. Although Cruise publicly argued that Kidman could properly support herself on her own (with her personal fortune back then of approximately $100 million, while his was reported to be $250 million), they kept their final spousal support agreement under wraps. Although any amount of support would probably just seem like a drop in the bucket to these millionaires, to the average Californian going through a divorce, spousal support payments are a HUGE deal. Regardless of the length of your marriage, and whether you are the higher or lower income earner in your marriage, it is important that you have competent legal counsel to ensure that your rights are protected.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.