by Commissioner Richard G. Vogl (Ret.)

Being in a marriage for more than ten years can give substantial benefits. A marriage lasting ten years or more is considered a marriage “of long duration.” Cal. Fam. Code § 4336(b) (West 2014). California law affords parties dissolving marriages of long duration additional benefits and protections. The first benefit is the presumption of permanent spousal support. See generally, Cal. Fam. Code § 4336 (West 2014). For marriages of long duration, the court must make an order for permanent spousal support, even if only a “reservation of jurisdiction.” Id. “[E]xcept upon written agreement of the parties to the contrary, or a court order terminating spousal support, the court retains jurisdiction indefinitely where the marriage has been of long duration.” Cal. Fam. Code § 4336(a) (West 2014).

The Social Security Administration also considers a marriage of ten years or longer to be a marriage of long duration, and grants additional benefits to parties dissolving marriages of long duration. After a marriage of ten years, a spouse has the right to receive Social Security payments from the account of the other spouse without diminishing the working spouse’s account. Parties who desire to end a marriage on their ninth anniversary are well advised to wait another year.

So what happens when the parties lived together for five years and then were actually married for only six years before the dissolution of marriage action is filed? Sure, they were a “couple” for more than ten years, but they were married for fewer than ten years. May the parties “tack on” the additional prior years?

One answer was given to us in the case of In re Marriage of Bukaty, 180 Cal. App. 3d 143 (1986). In that case, the parties were married and divorced and then re-married. The court held that tacking the period of the first marriage to the period of the second marriage was not permitted. Id. at 148. Why? Because the family law act was not designed for non-marital relationships.

But, wait, there’s more.
Another answer was given to us in the case of In re Marriage of Chapman, 191 Cal. App. 3d 1308 (1987). The court in Chapman reversed the trial court, which had considered only the three-month marriage that had followed a short separation after nineteen prior years of marriage. Id. The opinion stated that a trial court should consider the collective length of the marital relationships, the brevity of the interval between the end of the first marriage and the remarriage, and the uninterrupted and continuing nature of one party’s (husband’s) legal responsibility to support the other (wife). Id. at 1315. The court held “it would be both unreal and unjust to preclude judicial consideration of the entire marital history of the parties.” Id. In effect, the court said “it depends.”

And a same-sex marriage?
This interesting issue now arises afresh with the legalization of same-sex marriages. That is, a couple may have been together for many, many years but may have been legally married for a period of less than ten years when a dissolution is filed. Should “tacking” be permitted for one party to seek lifetime support? Would “tacking” be permitted in consideration of a claim against the federal government for Social Security derivative benefits?

The Chapman court held that the court might consider tacking where one party was consistently obligated to support the other. Id. Would that be true in a same-sex relationship? But if there had been no legal obligation to support the other party, then despite a long relationship, does the wealthy partner escape any obligation after a short marriage? It would seem so.

Possible Scenarios
The issue would seem ripe in four possible scenarios.

If the parties were married in another jurisdiction for a number of years and now end the marriage in California, then if the total adds to ten years, it would seem, under Chapman, that Section 4336 would apply. What if Terry and Adrian were married in another state for nine years and resided in California for just two years prior to the dissolution action being filed? Might the court tack the years together?

If a party could claim a putative marriage, lifetime support might be sought. Suppose Kelly argues that she believed that the parties were married after going through a “spiritual ceremony” and relied upon Taylor’s representation that they were married. After five years, they legally married and then stayed married for six years before a dissolution action was filed. Could the court tack on the earlier five years?

If the litigants were parties to a domestic partnership agreement, it would seem Section 4336 would become an issue. Suppose Pat and Kim had a domestic partnership agreement for six years and were then married for six years before one of them filed to end the marriage. Might not the court tack on the earlier six years to make a ten-year “marriage” under Section 4336?

If the parties could be deemed in a “common-law” marriage in another jurisdiction, where such a relationship might be recognized, then Section 4336 could be argued. Could either Blair or Erin claim their earlier relationship was a common law marriage in another jurisdiction so that the court should tack on their earlier years?

What Is Separation?
As a part and parcel of the decision-making process, one must consider this important language of the “date of separation.” Does this legal term mean something different to lawyers than it does to the person on the street?

In re Marriage of Manfer, 144 Cal. App. 4th 925, 926 (2006), the court held that in determining a date of separation, the trial court must make a finding that the parties’ private conduct demonstrated a complete and final break in the marital relationship, and that this finding is not a “public perception standard,” but rather the “subjective intent” legal standard.

Drawing from the relevant judicial decisions, two factors emerge as prerequisites to separation. First, at least one spouse must entertain the subjective intent to end the marriage. Second, there must be objective evidence of conduct furthering that intent.

In re Marriage of Davis, 220 Cal. App. 4th 1109 (2013), a more recent case, makes clear that it is important to have an “articulating of facts” indicating that the marriage is over. The court also emphasized the importance of contemporaneous actions evidencing the separation. Id. The court weighed both of these issues, regardless of whether the parties had physically separated or remained living under the same roof. Id. In other words, actually living in separate residences or not is only one factor considered by the court.

Is All Lost?
The court’s power to make a spousal support order arises from the law, but, in truth, the determination of the court as to the sum ordered and the length of time for which the sum should be paid is entirely an equitable decision. Chapman seems to stress equity. See generally, Chapman, 191 Cal. App. 3d 1308 (1987).

But if the parties had entered into a long-term relationship and had never actually created a Domestic Partnership, Bukaty says, as there was no support obligation existing, the court has no equity to consider. See Bukaty, 180 Cal. App. 3d at 143.

Another claim may well be made, however, pursuant to our old friend Marvin v. Marvin, 18 Cal. 3d 660 (1976). It would seem that the party desiring support must sue claiming breach of an oral contract, quantum meruit, declaratory relief, and constructive trust. See Chiba v. Greenwald, 156 Cal. App. 4th 71 (2007). This assumes, of course, that there was such an agreement.

And what of relationships that may have commenced in another jurisdiction? Imagine a couple residing in a state where common law marriages are recognized. Usually the requirements are: (1) having lived together for a prescribed period of time, which may vary from state to state; (2) the parties must truly consent to be married; (3) the parties must act as if they were married such as filing joint tax returns, and each calling the other their spouse; and finally (4) the parties must meet any specific state regulation, such as being a specific age.

Common-law marriages may not be commenced in California, but are recognized if established in another jurisdiction before the parties came to this state.

And what if the relationship started with one party believing that the Zen-inspired beach candle ceremony was sufficient prior to the more traditional (and legal) California ceremony? Such a person may be a putative spouse. Shouldn’t a court tack on those years?

Family law continues to be a fascinating field of study!

Commissioner Richard G. Vogl (Ret.) served on the family law panel of the superior court for twenty-six years and now accepts matters as a privately compensated temporary judge. He can be reached at richvogl@gmail.com.