Navigating the 10-Year Marriage Rule in Divorce Proceedings

What is the 10-Year Marriage Rule?

The 10-Year Marriage Rule refers to a part of the federal law that affects how long an individual can be entitled to receive spousal support (also called spousal maintenance or alimony) from a spouse. This is important to know in divorce actions, which are actions for dissolution of marriage or domestic relations. Under the law, entitlement to spousal support terminates automatically upon the death of either spouse, or if the recipient spouse remarries. In addition, entitlement can terminate upon the payment of the specific duration of time, based on a formula that is set to run from the date of obtaining a divorce decree . The formula is a sliding scale computed by multiplying the number of years the parties were married by either 36 or 60, depending upon whether there are children that are supported by the parties.
Marriage for a term of 10 years is significant because it is the dividing point between the two scales. If the parties have been married for less than 10 years, the payout formula will be 36 months. If the parties were married for more than 10 years, then the payout formula will be 60 months. Individual courts have the discretion to award less or to not award any spousal support upon a showing of good cause.

Why Consider the Length of Your Marriage

A marriage of greater duration has some benefits over a shorter marriage. More specifically, the longer you are married, the more likely your ability to provide for yourself becomes irrelevant. The reason being is that the courts like to preserve the status quo, meaning if you have been married for a significant time, this is your "normal" and divorce may not change your lifestyle significantly.
In Caterson v. Caterson, the court upheld a decision to award indefinite spousal maintenance based on a 17 year marriage. The rationale was "the wife requires the husband’s support since she has been unemployed and married for many years." One must ask, why was the husband unable to provide a job or income for his wife? To be fair, he did say he would pay off her mortgage, but "the court determined that the husband ‘should be addressing [her] basic necessities… as well as her standard of living.’"
Other considerations in deciding on whether spousal support is necessary include the ability of each spouse to find meaningful employment, the time necessary for training, education or work experience to establish the earning capacity of the spouse seeking support, childcare responsibilities and other circumstances including health. There is not a bright line test to determine whether the wife receiving the spousal maintenance is entitled to greater amounts because she is getting an education or not working at all to care for children. There is no mandatory formula to follow either. Each case is fact specific and each judge has much more discretion in awarding spousal support than awarding child support.
In a shorter marriage (e.g. less than 10 years), many courts look to apply the "10 year rule of thumb," so that the years of marriage will be multiplied by 5% to determine the likely post-divorce support and divide the result through. While there is no fixed formula, this is considered a reasonable starting point by many courts so that the receiving spouse is granted no less than half the amount of time of support.
In contrast, marriages that last longer than 10 years are often eligible to receive one-half or more of their spouse’s total wages for one year after the marriage ends for every 4 to 5 years of marriage. For example a 20-year marriage receiving child support equivalent to 1/2 of spouse’s gross earnings for the next 5 years after the divorce. This spousal adjustment can be equitable and is up to the court’s discretion. Courts may also consider other deductions, taxes, and health care when determining the amount and duration of spousal support.

Who is Entitled to Spousal Support

The 10-year marriage rule can also affect eligibility for spousal support. Typically, for a receiving spouse to be eligible for spousal support under California law, the parties must have been married for at least 10 years. While this is a general rule, there are exceptions. For example, child support (including spousal support) cannot be ordered after a child reaches the age majority, which, in most circumstances, is 18. So, if the parties’ child is 18 and the parent is not yet 10 years married from the date of marriage, spousal support will not be an issue.
Further, there are circumstances where the receiving spouse may be entitled to spousal support when the marriage is less than 10 years. Generally, courts will use the duration of the marriage as the starting point in establishing the duration of spousal support. The longer the marriage, the longer the duration of spousal support.
Duration of marriage is measured from the date of marriage to the date of separation. Since awards of spousal support are always subject to the ability of the parties to modify the terms of the award, it is important that the trial court retains jurisdiction to award spousal support should the need arise.
Keeping in mind that California is a community property state, which means that generally, all property acquired during the marriage is owned equally by each spouse, these aspects can significantly affect division of property assets and spousal support. If the parties are married for 20 years, all of the assets are considered to be owned jointly by both spouses, and therefore, are community property assets and will be equally divided. Generally, if the parties are married for 10 years or more, no spousal support is ordered. And, once the court establishes the duration of the spousal support, it can only modify that time period if one of the parties petitions the court for that modification. In contrast, when the marriage is less than 10 years, the spousal support time periods and amounts are generally less conservative. These may include, but are not limited to: 50 percent of the number of months in the marriage may be incurred as spousal support with a termination date at the date of separation unless a petition for extension of spousal support is filed prior to the expiration of the original order.

Social Security Benefits and the 10-Year Rule

Divorce and Social Security Benefits: What the 10-Year Rule Means for You
The relationship between your divorce and social security benefits might be a bit tenuous at first glance. In fact, social security may not be something you consider until after the divorce process is finalized—but knowing how it impacts your future is a key element of divorce financial planning. Equalization of retirement benefits is a big issue as people reach retirement age and a familiar consideration is how the age of retirement (usually 66-67 today) impacts the divorce. This is in part due to the rules in place regarding the division of retirement accounts and the possible need for a QDRO (Qualified Domestic Relations Order). It also is connected to social security benefits. What happens to my Social Security benefits, how will my divorce impact them, and why is it important to worry about these things? One of the most often talked about sub-topics is the impact of divorce on Social Security survivor benefits. Previous marriage history plays a role in your future social security benefits and divorce is one of the "ins" to better benefits. If you’ve been married to someone for 10 years or more, a divorce does not impact how long you can draw social security benefits from your ex. If you are the divorced spouse and your ex passes away before you, you can draw survivor benefits at a rate of 100% from the Social Security Administration. The major caveat is that you must have been married for a decade or longer to qualify. The critical date for this benefit is the effective date of the divorce. You need to be divorced before the death of your ex to qualify—a divorce after your ex’s death will not pass these benefits onto the former spouse. The minor children of the veteran also qualify for survivor benefits from the Social Security Administration if they are younger than 18.

Division of Pensions and Retirement Plans

There are many ways in which property acquired during the marriage can be divided in a divorce or by dissolution of a domestic partnership. Whether retirement benefits or pensions established during the marriage are considered marital property subject to division is one such area. The division will vary based on where you live. Federal law applies the same rules for federal workers and those workers who work for state governments in PA and NJ. In Pennsylvania, each of the 67 counties have the option to establish local court rules and orders detailing how courts must divide pensions or retirement benefits awarded in a divorce or even upon a death longer than 10 years into the marriage . Because of this, when one spouse has a pension or retirement that they acquired during the marriage in a county that has rules and orders that apply, the rules and orders must be considered prior to the division. For example, in Chester County, the pension or retirement benefits of either party will be divided as stock in a corporation where the court will determine the value and then divide it equally or as it would property. In Montgomery County, the current monetary value will be divided by the court and that value will be subject to cost basis valuation followed by a direct rollover to a qualified plan. In Philadelphia, pension or retirement benefits that are accrued while married will be determined by expert testimony. With these substantial differences, it is certainly wise to consult with an attorney familiar with local practice.

Influence on Family Law Jurisdictions

While there are many similarities in the way states handle the 10-Year Marriage Rule, there is no shortage of differences. For instance, in Pennsylvania, alimony pendente lite is available to a dependent spouse even though the length of the marriage is less than 10 years. On the other hand, the length of the marriage is not considered a factor in determining the duration of the award of alimony as long as there is a showing of need and ability to pay.
In Connecticut, under certain circumstances, an increase in child support payments may be made earlier than three years after the date of divorce. Additionally, Connecticut also recognizes that, in rare cases, a reduction in the amount a dependent spouse may receive may be made within three years.
Maine courts may award alimony for an indefinite duration to a dependant spouse when the duration of the marriage is 10 or more years and when such an award is found to be appropriate. Otherwise, the timing of the modification is governed by the standard (three years after divorce) date. A 2006 Maine case illustrated a departure from that general rule. In Geib v. Geib, the appellate court ruled that the lower court was within its discretion to award an increase in alimony for a limited period of time to permit a wife to obtain additional education, but not to extend the period of time after which an increase could be sought if additional education was not obtained. The goal of rehabilitative alimony is to assist a dependent spouse in increasing his or her earning capacity to become economically independent. That depends on financial resources and time.
In Maryland, 10 years defines the date by which calculation of a split of the marital property is suspended unless there has been an agreement made before that date or a court order providing otherwise. Any gift received by a sponsor spouse is not counted toward marital property division. Although it has not been addressed yet in case law, the question of whether marital property can be defined as "manageable" after 10 years remains to be answered.
Virginia courts have discretion to award indefinite alimony to a dependant spouse who is within 10 years of retirement at the date of divorce. Thus, in principle, the rule seems to apply only to such shorter duration marriages.

Misinterpretations

A common misconception surrounding the 10-year marriage rule is that all clients are entitled to a lifetime of support should they receive a one-time payment in settlement. While it’s true that there are certain scenarios in which this type of settlement could benefit you, it is important to keep in mind that lump-sum spousal support is always payable in lieu of what you would be entitled to receive if you received monthly alimony.
Therefore, if you receive $100,000 in settlement, the receiving spouse would be entitled to one year of support unless the spouse paying support can show that by paying a lump sum he or she will avoid paying out far more over time. In an example where the monthly alimony is $2,500, the spouse paying support would need to show that he or she would otherwise pay out of pocket an amount aggregating more than $1,500 within the same 12-month period. That could equate to a little over seven months of support before the difference becomes significant.
Another misperception is that anyone married for 10 years is guaranteed lifetime support, regardless of their financial situation. A court will consider the following factors: duration of the marriage; age and health of the parties; earning capacity and employability; and financial condition and future financial impact.
In some cases, the court will not award permanent alimony even if the marriage lasted more than 20 years. In one New Jersey case, the court held that the equitable distribution of the marital assets would allow the recipient spouse to maintain a reasonable lifestyle. Therefore, there was no need for permanent support.
Finally, a misconception with regard to cohabitation surrounds the enforcement of a shared living arrangement. In this scenario, a former spouse must prove the following criteria: (1) the shared space is a mutual agreement; (2) the life as a couple exhibits marital standards; and (3) the economic benefit sought is equivalent to support.
Although divorce can be overwhelming, understanding the 10-year marriage rule can help clarify expectations and avoid common problems.

Conclusion and Strategic Considerations

While the 10-year rule may seem to be a gift from the court system for attaining a long-duration marriage, the existence of that rule – and its exceptions – can actually create major strategic implications. Most states have an "exception" in that the courts may, based on the ages of the parties when they were married, extend the duration of alimony before the 10-year rule is triggered. So, for example, if a party was married to the 48 year old party and the parties divorced after 4 years, it is not at all unlikely that the amount of alimony would be determine by the age of the parties when they married – turning what started out as a short-duration marriage into a longer-duration marriage for the purposes of alimony. Generally speaking, if both parties are under 40 when they marry, this exception is likely to apply. Messy, right? While there are multi-factor tests which courts apply to determine the issue of duration before the 10-year rule is triggered when applying this exception, it is not exactly an easy job for attorneys to determine whether this exception will apply, at least not until the court decides .
Another situation where there are "strategic considerations" to this 10 year rule is in what is called the "Bridge-the-gap" period. This is a period that begins after the filing of the divorce complaint and ends six months after the divorce is finalized. So, for example, in case that begins during the first year of a 10-year marriage, the Bridge-the-Gap period could end up being one year in total – 12 months for the year of the marriage, plus 6 months post-divorce. In most states, with the exception of New Jersey, the court’s ability to award "Bridge-the-Gap" alimony is determined not by the automatic duration rules, but by the length of the marriage really more directly impacts this type of alimony.
Interestingly, even if you do not meet the 10 year threshold, but reach 9 years and a number of other factors exist, the court might also apply the 10 year rule to your alimony award. As with anything else in divorce, the winding rules and exceptions can create strategic issues for a party in a divorce case that cannot afford to be neglected.