California Divorce And Family Law Overview
Before we turn to our 5-year rule, let’s begin with the basics of divorce law. Calif. Fam. Code 2300(a) requires at least 6 months of residency in California preceding the filing of the Petition in order to obtain a Judgment of Dissolution of Marriage. It is important to note that residence must be in California not just in San Diego County – even if all assets or property are located here. For example, I represented a client who lived in Guam while his wife lived in California for over a year. After filing for divorce, he thought he would be able to receive the divorce in California. Not so. The client was not considered a resident of California for purposes of divorce and he was forced to seek his divorce in Guam.
Thus, California Divorce law doesn’t apply to anyone just because they own property or have assets in California. As a general rule, there are two elements to determine whether a California Court has Jurisdiction or authority to grant a divorce: The only exception to the 6-month residency rule is for the Respondent Spouse. If the Respondent resides in California on the date the Petition is filed but subsequently moves to another state (or country) before the Judgment is entered, it may still be possible to divide community property, award spousal support or enter other orders in the Dissolution action. The key to paying attention to here is that the divorce must have been filed in California before the Respondent Spouse moves . This is an important point for those people who travel frequently or have a residence in another state. It is important to note that even if the Respondent is outside the State, he/she shall not be precluded from contesting jurisdictional issues in their response (Responsive Declaration) to the Petition.
California has a no fault divorce law. Even if one party is completely guilty of blowing up the marriage and living with another person before filing the divorce, it doesn’t matter much. As the U.S. Supreme Court confirmed in 1969 where "there is a breakdown of the marital relationship to the extent that the legitimate objects of matrimony have ended", that is sufficient to establish grounds for divorce. Further, each party is entitled to half of the community property and an equitable distribution of debts. A party is not entitled to a greater share of the community property, simply because he or she is the "innocent" party. In fact, conduct during the marriage is often inadmissible, except in a few circumstances. The few exceptions to this rule are that conduct is appropriate in issues concerning custody of children and division of the community property. It is possible to lose the entire community estate or all of the separate property, if he/she destroys the property or gambles it away. Additionally, if the party transferred separate property into a joint account during the marriage, that property may now be classified as community property.
Defining The 5-Year Law
The 5-Year Rule is a term that divorcing parties hear often, but in general, they don’t really understand what it is. This could be because the rule itself has two aspects that are both important but separate.
The first aspect is that it provides supporting spouses the opportunity to request lifetime spousal support or spousal support for longer than the length of the marriage (the "length of the marriage" refers to the date of marriage until the date of separation). If there has been a long-term marriage, the court generally assumes that the earning power of the spouse requesting support has not kept pace with the financially more successful spouse, and therefore, that spouse will have the ability to request support for a significant period of time. The Family Code spells out what a "long term marriage" is: "Length of the marriage" means the period of time from the date of marriage to the date of separation as determined by the court." The Family Code also provides: "In the case of a marriage of long duration … a spousal support order shall be made in such amount and for such period of time as the court determines is just and reasonable, taking into consideration the standard of living of the parties during the marriage, the position and skill of the supported party and the likely impact of those skills on the earning capacity of the supported party."
While the court considers the length of the marriage in making spousal support orders, the 5-year rule comes into play after the court has made the initial award of spousal support. The 5-year rule requires that if a spousal support award exceeds half the length of the marriage, then the period of spousal support is not to exceed half the length of the marriage unless the court finds justification. So for example, if there has been a short-term marriage, for example of 6 months, spousal support would be limited to 3 months without a showing of need for a longer period. The Family Code Section 4320 sets forth the guidelines for the court and the parties to consider in determining spousal support.
What this means for the supported spouse is simple: unless the 5-year rule applies, a court is not likely to grant spousal support for longer than one-half the length of the marriage. This does not mean that the court cannot grant support for longer than 5 years, it simply means that the court must make specific findings in order to do so.
The Impact of Community Property On the 5-Year Law
The "5-Year Rule" is found at Family Code section 3321. It has to do with disputes as to what property is subject to division on divorce. California is a community property state, which means that generally all assets acquired during the marriage are presumed to be community property. So one spouse cannot take an asset acquired during the marriage from the other spouse. The exceptions to the rule are generally the assets acquired prior to marriage, gifts to one of the spouses during the marriage (unless it can be shown that the gift was to both, such as a joint account), inheritances during the marriage (unless it can be shown that the inheritance was intended for both) and personal injury awards received by one spouse during the marriage (the exception is punitive damages, which are presumed to be separate property of the injured spouse unless the injured spouse can show that the award was intended for both). If one spouse receives funds during the marriage that are community property, and then takes those funds and changes them in character, such as investing them into another asset, he can attempt to change their character. If he does so while the funds are still community property, it can be presumed that he received a gift of the funds and their earnings to his spouse. Here is an example: John and Sara (married in California) have a joint bank account that they accumulated during the marriage. John inherits $500,000 during the time of the marriage. He deposits the money into the joint account with Sara. They agree to keep the money together in the account as a joint asset. However, during the divorce he claims that he intended the money to be his separate property. If he can prove the intent, the inheritance is his separate property, but the earnings on the separate property will be community property. If the inheritance is presumed community property (the couple failed to act consistent with its separate property nature), the funds would be community, reimbursable to John and also his separate property. The earnings would be community. The 5-Year Rule applies to property that is not inherited. In other words, if the property, such as money in a bank account, emerges from the community during the marriage while owned by one spouse, and then remains under the voluntary control of the spouse for five years, it becomes his separate property. And then the earnings become his separate property. The theory is that there has been a donative intent by all the members of the family to make the property the separate property of the spouse who now has it. For this reason, Family Code section 2610 provides that separated spouses can use the five-year rule to convert community property to separate property. If the spouses separate while the money is community, and one spouse then takes it, the court will preside over a hearing whether the funds should be characterized as the moved spouse’s separate property. A common factual scenario is when the husband takes the savings out of the joint account and puts it in an account at the credit union using his social security number (as opposed to the parties’). When the parties separate, he may move the money to a different account, but if there has not been a donative intent and the five years have not passed, the money may be deemed community property.
The Effect on Alimony / Spousal Support
In California divorce cases, the "5-year rule" has a notable impact on the determination of alimony or spousal support. If the couple was married for less than 10 years, the duration of alimony is presumed to be half the length of the marriage. For example, if a couple spent 9 years together and 6 years of that was marriage, alimony would be presumed to last 3 years.
The "5-year rule" alters this presumption in the cases of marriages that last longer than 5 years yet 10 years or fewer. For a couple that spent 10 years together, with 6 being as a married couple, the presumed duration of alimony would be 6 years, or 60 percent the duration of the marriage. For the sake of clarity, couples can agree to outlining the duration period in a written stipulation.
The "5-year rule" has had an impact on change of control provisions that were common in many prenups prior to the issuing of the ruling in In re Marriage of Benson. With this ruling, such a provision calling for a 10-year duration may actually last for just short of 5 years. For the sake of consistency, the California Divorce Guide advises against using a change of control that might be affected by the 5-year rule.
Exceptions To and Special Circumstances of California’s 5-Year Rule
Not all cases fit the cookie-cutter mold of California law. In exceptional or special circumstances, the court is able to consider other factors rather than following the law as dictated by the Legislative. These circumstances include things like domestic abuse, endangerment, or financial hardship, and others, when determining whether or not they will enforce the 5-year rule as written. When the court is making a decision, it will have the option at hand of waiving the application of the rule. They can morally see that the situation has merit one way or another , and the 5-year rule would unfairly penalize the spouse in this case. Or perhaps the other party requests the rule be waived on the basis of money and the waiving of the rule would be less expensive than going through the litigation process to determine whether the court will grant an exception. If, as is often the case, domestic abuse is found to have occurred, the court can exercise its discretion to waive the rule based on the circumstances. If the abused party waives rights under the law for the consideration of spousal support, the abuser is not entitled to a spousal support award after five years and even longer in some cases in accordance with the law. The person who has been harmed may successfully set aside rights under the law in order to do what is right.
Examples and Cases Illustrating the 5-Year Rule
Let’s use fictional characters, James and Kim, for the examples.
Example 1 – Mary and Tom are married. They each have income, but were married for only four years when they divorced. Tom is ordered to pay $800 per month in spousal support to Mary. However, under the 5-year rule, since the parties were married for less than 10 years, his support obligation to Mary may not exceed one-half of the length of the marriage, i.e., two years or $19,200 total. Thereafter all spousal support terminates.
Example 2 – Mary and Tom are married. They are each well off. Mary and Tom are married for 12 years and enjoy their lifestyle. Mary stays home with the parties’ children, while Tom works. Tom’s income increases significantly over the life of the marriage. Divorce occurs at 15 years of marriage. Under the general spousal support legislation, Tom will be required to pay spousal support to Mary indefinitely and in an amount based upon the respective incomes of the parties. However, under the 5-year rule, because the parties were married for more than 10 years, Tom will be required to pay spousal support to Mary in an amount based upon the respective incomes of the parties and with no required termination date.
Example 3 – Mary and Tom are married. They each enjoy good incomes, but the marriage ends after five years. Tom argues that he should not have to pay support at all. However, Mary was staying home caring for the parties’ child and the fact that the marriage lasted for a period of five years means she is likely entitled to support for half that time or 30 months, although an argument could be made in some cases for continued spousal support until the child is older.
How to Proceed with Your Divorce Under the 5-Year Law
Navigating a divorce or separation under California’s 5-year rule requires careful attention to detail and a clear understanding of the law. While the rule provides certain protection for dependent spouses, it also places the burden of proof regarding spousal support squarely on their shoulders. And, if they don’t know that their spouses have to pay support, a dependent spouse could find himself or herself at a significant disadvantage.
Here are some tips for ensuring you know exactly how California’s rule will affect your divorce case: Make sure you understand how long you have been married. As the burden of proof for support lies with the dependent spouse, it is crucial that you document all of your dates with your spouse. In fact, it’s a good idea to document each and every time you leave and return home. For example, if you leave the home for a couple of hours each weekend, be sure to document the times so you have your anniversary date as well as the date you reached the 5-year mark. Be sure the judge has evidence of your marriage length before ordering spousal support. In addition to documenting the length of your marriage, it’s also important to file all evidence with the court and review it with your attorney or an attorney who can review the file. Discrepancies in dates and dates that fall just short of the five-year requirement could cause problems if the judge doesn’t have clear documentation before issuing orders for spousal support.
Document all support payments made or received. Again, the burden of proof for documenting support falls on the dependent spouse. Just as the dependent spouse must document the length of the marriage, he or she must also document all payments received or made. That includes cash, check, debit card, credit card, and so forth. The timing of these payments is also critical. Failure to stick to a set-agreement must be documented, along with the reasons the payments were late or the parties chose not to follow the plan.
Be proactive in ordering the hearing for spousal support. Failure to order a hearing for spousal support means you could be paying the wrong amount, or not receiving enough. The court will not automatically set a hearing just because the parties do not agree on the proper amount of support. In addition, the burden is on the dependent spouse to document the proper amount of support. If there are disputes over the value of assets, for example, the dependent spouse must file papers with the court showing what the value is and why. The other spouse then has an opportunity to file papers with the court disputing the value. After a hearing, the judge will decide on the value of the assets. Only then can the judge decide on support amounts. Failure to set a hearing means a dependent spouse could be missing out on lots of money – money that must be proven with paperwork and witness testimony.
Work with a family law expert who knows the ins and outs of California divorce law. To ensure you know exactly how to preserve your rights in your divorce, work with an expert who focuses solely on family law. Not only will an expert know all the details of the law, he or she will also know how evidence is handled in your particular court system. If you’re considering a divorce and want to know how the 5-year rule would affect your case, talk to a family law attorney today.
Conclusion and Legal Aids
In conclusion, the 5-year rule plays a crucial role in the context of California divorce law. It ensures that divorce judgments are final and prevents one former spouse from controlling what the other can do in the future based on the outcome of earlier divorce proceedings. However, as we have seen, there are exceptions to the 5-year rule that allow for former spouses to seek spousal support modification even after the 5-year period has passed.
Ultimately, it is essential to recognize that the courts are not bound by the 5-year rule when it comes to dealing with what are known as "change of circumstance" situations. When such an event occurs , the moving party (the spouse who is seeking the modification) must show that there has been a legitimate and meaningful change in his or her financial circumstances since the divorce judgment was established. This demonstrates to the court’s satisfaction that a material change in circumstances has occurred which justifies a modification of alimony payments.
If you have questions about spousal support, or if you are currently seeking a divorce and want to negotiate a favorable separation agreement, seek the legal assistance of a qualified family lawyer in California.