Dave Hilger said:
What is the name of your state? CA
i filed for divorce after being married 9yrs and 10 months. the divorce won't be final until after the 10 year mark has passed. will this affect the amount of alimony i have to pay? i.e. will the marriage be considered to be over 10 years. i have lived out of the house for over 2 years but never had a legal separation
My response:
Yes and no. It depends upon the actual facts of your case. The fact that you didn't file sooner means that you drew your marriage out longer toward the "statutory presumption," which didn't help you.
Be aware, however, that the statutory presumption does not rule out a finding that less-than-10-year marriages are of "long duration" for purposes of retaining spousal support jurisdiction. [Ca Fam § 4336(b)] After evaluating and weighing the underlying facts and circumstances, trial courts have discretion to determine - - without the aid of a presumption - - that shorter marriages are "lengthy." [See Marriage of Heistermann (1991) 234 Cal.App.3d 1195, 1202, 286 Cal.Rptr. 127, 132]
In marriages of "long duration" (presumptively 10 years or longer), the court is deemed to retain spousal support jurisdiction "indefinitely" (notwithstanding the absence of an express reservation of jurisdiction) absent written agreement of the parties to the contrary or a court order terminating spousal support. [Ca Fam § 4336(a) & (b); Marriage of Ousterman (1996) 46 Cal.App.4th 1090, 1093, 54 Cal.Rptr.2d 403, 404]
In summary, the "10 year" mark is only a guideline "marker" and not something that is "set in granite." A judge has, depending on the facts of the marriage, great amounts of discretion to order spousal support below the 10 year mark.
IAAL
