Legal Question in Family Law in California
I have been married for almost 9 years in California. I need to file for divorce. I've been told that I should wait 13 more months, so that we would be married for 10 years when I file for divorce due to alimony and retirement benefits.
If I file for legal seperation before the 10 year mark, is that when the marriage is concidered ended, therefore risking the benefits? I really want out as soon as possible, but I feel like I need those extra benefits to use to fight for my kids. (He has threatened to do whatever he can to not pay child support, including lying so he gets custody).
2 Answers from Attorneys
10 years is not a bright line that suddenly makes things happen. It is the dividing point at which a marriage is deemed to have been "of long duration." The impact of that is primarily on spousal support which involves a great many other factors in addition to length of marriage. The answer to your question, however, is that the deciding moment is when you "separate without intent to resume the marital community." So 1. that may happen even without you filing anything if you or he move out and never reconcile, and 2. filing for legal separation would most certainly trigger that. So no, you can't separate and then later divorce to make it over the 10-year mark.
Establishing custody is based upon the children's best interests. Merely asserting that father believes he has a right to have the children does not elevate itself to satisfying that requirement. Please meet with an experienced family law attorney
to explore your legal options.
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