They say that marriages fall apart in increments of 7 – 7 years, 14 years, 21 years, and so on. It’s where the whole “Seven Year Itch” thing came from. In a lot of ways, I see it. Even though the first year of marriage is sometimes tumultuous, people tend to settle into a groove after a period of time. Even if it doesn’t feel like the ‘happily ever after’ you imagined, you can put up with a lot over the years – until you reach the point that you can’t anymore.
Ten years is about that point for a lot of people. You gave it all you had, but you reached a point where you were ready to cut your losses. Start over. Try again. Not necessarily for love, but for something different or better or more satisfying.
Ten years is long enough to have given it a go, but ultimately decided that this wasn’t right for you. And that’s good. In fact, I think ten years is good in the sense that you gave the marriage a shot and you put in the time to work things out when they weren’t perfect. Most women, I think, want to go into the divorce knowing that they did everything they could to make it work, and, in the end, it just didn’t.
How to get a divorce after 10 years of marriage
The answer here is the same as how to get a divorce after 1 year or 5 years – you either work it out together and negotiate a separation agreement, or you go to court and let the judge decide. Those are the only two options.
Of course, within that framework, there are a number of different ways to get an agreement in place: you can negotiate with a lawyer, you can go through mediation, you can participate in collaborative divorce, or you can even do it yourself.
Court is just court; you fight it out and ultimately the judge decides. Any power that you might have had to decide the outcome between the two of you is handed over to the judge, arguably the person in the room who knows the parties and understands the unique circumstances involved the least. Is it necessary sometimes? Yes. Would it be better to avoid it and negotiate yourselves? Usually also yes.
The bottom line: a legal contract between the two of you, formally dividing all of your assets, liabilities, and responsibilities between you, or letting a judge decide how to handle your children and your money for you.
After ten years, the ‘marital share’ of various assets starts to actually mean something, too. Before this point, any marital share was much more negligible, but once you’ve gotten to a point where you’ve spent a decade with someone, you likely have a lot of assets tied up together and a lot of money in, for example, retirement accounts. Unlike shorter term marriages, you probably no longer have the option of waiving your interest in them; over the long term, its just too costly. (That is, unless your accounts happen to be the ones of greater value.)
This is good, in the sense that it means that you, in the last ten years, have amassed a kind of wealth that is significant to you and for your lifestyle over the long term. It’s more challenging in the sense that, rather than there being no incentive to pursue a litigated divorce, there may be enough dollars at stake that one or both of you are willing to go to some lengths to get what you believe is rightfully yours. There’s just more at stake, which makes things (potentially, though not necessarily) more volatile.
Special considerations for a divorce after ten years
There are often differences between divorces of different durations – which, I think obviously, is why we’d tackle this article (and all of the articles in this series).
There are no ‘one size fits all’ conclusions in divorce, but ten years adds up to a substantial period of time, so it’s a bit different than some marriages of shorter duration.
A marriage of ten years often (though not always) results in children and, at this stage, you could find yourself with children ranging pretty dramatically in age. You could have a newborn, toddlers, school aged kids, or even teens or preteens. Obviously, what’s in the “best interests of the child(ren)” is very different consideration with differently aged kids, so you’ll want to work (preferably with your soon-to-be ex) to come up with a parenting plan that addresses their needs. It’s also good to understand that you’re not ‘locked’ in to a particular parenting plan; custody and visitation can always be modified based on a material change in circumstances.
At these ages (or these range of ages), we have lots of issues, like whether to enroll the children in private v. public school, how to handle extracurriculars, what happens when parents disagree on medical care, and a whole host of other issues. We’ve even seen issues relating to hair cuts, birthday parties, and technology use (like cell phones), especially where parents share widely divergent opinions.
For the most part, legal custody – the right to make (1) non emergency medical care, (2) religious upbringing, and (3) education related decisions – is awarded jointly between the parties, but physical custody, which refers to where the children live or spend their time, is awarded primarily to one parent, is shared between the parents (with the non custodial parent having 90 or more days in the calendar year), or split (with each child having their own, separate, custodial arrangement).
At this point, spousal support is more likely – assuming, of course, that an analysis of the factors (need versus ability to pay, the statutory factors, and the duration of the marriage) supports an award of spousal support. It’s not a super long term marriage at 10 or so years, so you’re probably looking at a maximum of half the length of the marriage, with some room for negotiation.
Keep in mind that spousal support doesn’t have to be a fixed amount each month over a fixed period of time; you could negotiate a lower rate for a longer period, or even a staggered amount that decreases over time as your ability to work increases. You could even negotiate a lump sum amount of support – which can often be advantageous since, as its all paid at once, it wouldn’t ‘terminate’ on death, remarriage, or cohabitation, like any other periodic payment would do.
Keep in mind, too, that adultery is a bar to spousal support except in cases of manifest injustice, and that you are very unlikely to get an ‘immediate’ divorce as a result of his adultery.
At the ten year point, you’re still entitled to a portion of his retirement – just like you were beginning on the first day of your marriage. There’s a lot of chatter out there about how, especially for military wives, no retirement portion is earned unless and until the parties have been married for ten years. That’s not true, whether you’re military or civilian, but people still think of ten years as a sort of benchmark for retirement purposes.
If you think about it, over a 20 year career and a ten year marriage (assuming the career and marriage both overlap), a 10 year marriage would entitle you to 25% – so that’s not insignificant. Definitely not something you’d want to waive, in any case, as you’d have trouble earning back your portion (again, unless you have more and you want him to waive his interest in yours, too) by other means in the time before you need to retire and use it to survive.
If you are military, an important point to note is that, at this point in your marriage, you’d be entitled to direct pay of your portion of the marital pension from DFAS, upon your husband’s retirement. Before ten years of marriage, you’d receive your portion from him; as in, he would receive his portion, and he’d pay you each month from that check. You might say its six of one and a half dozen of the other, but there’s much more opportunity for shenanigans if your ex pays you directly.
At the ten year point, you also don’t qualify as a 20-20-15, or a 20-20-20 spouse, so if you’re military you’ll need to secure your own healthcare after the divorce – same goes for a civilian, no matter the duration of the marriage.
The marital residence
I always encourage women to think carefully before deciding to keep the marital home. Maybe even see a financial advisor to determine whether its something you can afford. After all, its not just a question of the monthly mortgage rate; there’s also mortgage insurance (in some cases), taxes, and interest (which, of course, is higher lately than it has been previously, but always keep an eye on market rates). In addition, there’s the cost of repairs and maintenance (and, no, I don’t mean improvements) and upkeep (like lawn care). Be pragmatic about the house and decide, rationally and carefully, whether you can reasonably afford all the expenses.
This is just general advice. I don’t know your specific situation, so this may fall wide of the mark. I’m speaking in generalities about a lot of the issues we see with marriages of ten or so years, but you should definitely consult individually with an attorney to determine what your specific rights and entitlements are in your own marriage.
For more information, to request a copy of our divorce book for Virginia women, or to schedule a consultation today, give our office a call at 757-425-5200.