Monday, October 7, 2013

Marriages of "Long Duration" for Purposes of Spousal Support

In California, many parties to a divorce erroneously believe that a marriage of 10 years or more leads to spousal support (aka alimony) that may be ordered indefinitely.  This misconceived notion comes from a cursory review of Family Code section 4336 without understanding its nuance.  In fact, the law provides that the court retains jurisdiction indefinitely to order spousal support in a divorce where the marriage is of "long duration."  Family Code section 4336, defines a marriage of "long duration" as follows:

…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.

Rather than a bright-line rule, a marriage of 10 years or more only effects the burden of proving that the marriage is of “long duration” such that the court can retain jurisdiction indefinitely to order spousal support.  The court has discretion to determine that a marriage of less than 10 years is a marriage of “long duration” for purposes of retaining jurisdiction.

This is a very different issue than whether spousal support will be ordered to be paid indefinitely.  There are numerous mandatory factors that the court must take into consideration when making any order for spousal support.  The duration of spousal support will be for a “period of time, that the court determines is just and reasonable, taking into consideration the circumstances.”  [Family Code section 4330].  There is a mandatory consideration for the supported party to be self-supporting within a reasonable period of time.  [Family Code section 4320(l)].  Generally, this period of time is one-half the length of marriage, unless the marriage is of “long duration.”  Even then, the court has discretion to order it for a greater or lesser period of time, taking into consideration mandatory factors as provided under law and the circumstances of the parties.  [Family Code section 4320].

Ultimately, there are no two cases that are exactly alike.  Therefore, the court should have discretion to order spousal support for a period of time that is reasonable based upon the unique circumstances of the parties.  However, without any bright-line rules, parties to a divorce can be understandably uncertain and weary of how long or short an order for spousal support can continue for.  As such, having a knowledgeable and experienced attorney advocating for you may be necessary when litigating this issue.

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