Can I get spousal support and what is this 10 year rule I hear about?

Spousal Support, formerly referred to as “alimony” is a monthly amount of money given to a spouse in certain situations so as to help the supported spouse get back to (or at least closer to) the so-called “marital standard of living.” How the marital standard of living is determined can be a tricky proposition, and is beyond the scope of this article. However, in any case, the idea of whether spousal support should be ordered starts with this baseline determination (see Family Code 4320). In general, there are two types of spousal support, “temporary” and so-called “permanent” support. Temporary support is as it sounds, given temporarily after a divorce case is filed, and the party requesting support files a motion for support. In this case, the Court will generally start with a calculation of what support will be based on the parties’ respective incomes or earning capacity. Various computer calculation formulas are used (e.g. XSpouse) to initially determine what support should be. The amount of support awarded will generally be in place until a new Order is made. The Court (Judge) does have some discretion as to the amount and other terms of support, but generally once the Court determines the inputs into the computer calculation (income, deductions and the like) the computer-generated figure controls.

The second type of spousal support is “permanent” support, although the name is misleading. Permanent support doesn’t mean “forever” support. It simply refers to support that is not temporary. Permanent support awards can be for a set period of time or for an indeterminate time, and unless agreed otherwise, are subject to modification based on a change in circumstances. Although Courts may use the aforementioned computer calculations to determine a starting point or baseline for a permanent support award, a Court is not allowed to simply base its award solely on a computer calculation. Instead, the Court must consider all of the legal factors bearing on support. The list of those factors is contained in Family Code 4320, and is fairly lengthy. It includes such things as the age and health of the parties, whether there is documented evidence of a history of domestic violence, the income (or earning capacity) of the parties, the needs of the parties based on the standard of living during the marriage, and the duration of the marriage, just to name some of the factors. Importantly, section 4320 also provides that it is the goal that the party receiving support be self-supporting within a “reasonable period of time.” The section then provides that except for a marriage of long duration, a “reasonable period of time” is presumed to be half the length of the marriage. A “marriage of long duration” is rebuttably presumed to be anything over 10 years (see Family Code 4336) – hence the so-called “10-year rule.” So, if you are married for less than 10 years (from date of marriage to date of separation) a Court will likely order support terminated at a date that corresponds to one-half the length of you marriage. Support could still be modified before the termination date, however, depending on a change in circumstances.

There are also differences however, between whether the Court (absent an agreement) can order support reduced, including all the way to $0, versus whether it can order that a party may not seek a support award in the future. The ability of the Court to order support is termed the Court’s “jurisdiction” over the issue. In general, a Court (absent agreement) may not terminate its jurisdiction to award support to a party in a marriage of long duration – i.e. anything over 10 years in an initial proceeding to determine permanent support (which occurs in connection with your divorce). This is to be contrasted with a later motion filed some time after the divorce seeking to terminate support. Conversely, the Court can (and will) generally make orders terminating its jurisdiction over support in marriages of short duration – i.e. less than 10 years.

As always, every case is unique, and it is recommended you consult with an experienced family law attorney if you are either seeking spousal support or concerned about it being awarded against you.