I was married for 9 years 9 months at time of separation (june-2001).
I did not receive any spousal support for nearly 3 years until I filed
an emergency Order for Temporary support last year (4-2004). I have
several disabilities which prevent me from working more than 30
hours/week and at lower than expected wages (10/hr).  I am 49 yrs old;
my spouse is 47 and his comparible wages are substantially
more...during the entire marriage, he was the sole support while I
worked part-time in minimum wage jobs for Christmas money.  His
attorney claims I have the ability and certificates to enable me to
earn three times what I have historically earned and therefore, he is
seeking for no alimony award or the very best offer of 1/2 the term of
marriage.  My spouse contends that the 3 years we were separated while
he was making my car payments would be counted as alimony.  There
weren't any written obligations for him to make payments and the loan
was in both names.  There are no children of this marriage.  Summary:
I cannot find any precedence which would move me to accept his offer
of 18 months beyond the 18 months he has already paid temporary
alimony. Isn't spousal support still a viable asset division issue??

Dear justice4jackie-ga;

Thank you for allowing me to answer your interesting question. As you
probably already know, we cannot, by policy, provide legal advice in
this forum. What I am about to share with you is a matter of published
law and discussion on issues similar to yours. First let?s discuss the
issue of your spouse?s contribution of the car payment (which,
according to state law, is clearly HIS debt also):

?California is a "community property" state. Any jointly-held property
is presumed to be "community" property, unless it is clearly stated in
a deed or written agreement that the property is "separate" property.
Unless the spouses agree otherwise, all community and quasi-community
property is divided equally between the spouses. If economic
circumstances warrant, however, the court may award any asset to 1
spouse on such conditions as it feels proper to provide for a
substantially equal distribution of property.?

?Each spouse shall be responsible for the following debts: (1) those
incurred prior to marriage; (2) any separate debts during the marriage
that were not incurred to benefit the community (marriage); (3) their
equitable share of any community debts made during the marriage; and
(4) any debts incurred after separation and before dissolution of
marriage if the debts were for non-necessities and an equitable share
of debts incurred during this period if the debts were for
necessities. [Annotated California Code; Sections 2501, 2581, 2601,
2602, 2620, 2621, 2623, 2625, and 2641].?

DIVORCE SUPPOPRT.COM
California Property Division Factors
http://www.divorcesupport.com/divorce/California-Property-Division-Factors-440.html

Having said that, it seems that it can be argued that your spouse was
merely satisfying his own debt as opposed to assisting you with yours,
since the car is technically his property and his debt as well as
yours. If that is the case (and it appears that it is), since
California is a community property state and no court order or
agreement had yet divided the assets between you, your spouse?s
contribution to the car payment was as much his obligatory payment to
HIS creditor as it was to YOURS.


Now, in a nutshell, DIVORCE SUPPORT.COM explains California?s law on
support, alimony and separate maintenance this way:
 
?The court may award support to either spouse in any amount and for
any period of time that the court deems just and reasonable, based on
the standard of living achieved during the marriage. The factors
considered are: (1) whether the spouse seeking support is the
custodian of a child whose circumstances make it appropriate for that
spouse not to seek outside employment; (2) the time necessary to
acquire sufficient education and training to enable the spouse to find
appropriate employment and that spouse?s future earning capacity; (3)
the standard of living established during the marriage; (4) the
duration of the marriage; (5) the comparative financial resources of
the spouses, including their comparative earning abilities in the
labor market; (6) the needs and obligations of each spouse; (7) the
contribution of each spouse to the marriage, including services
rendered in homemaking, childcare, education, and career-building of
the other spouse; (8) the age and health of the spouses; (9) the
physical and emotional conditions of the spouses; (10) the tax
consequences to each spouse; (11) the ability of the supporting spouse
to pay, taking into account that spouse?s earning capacity, earned and
unearned income, assets, and standard of living; (12) the balance of
hardships to each party; and (13) any other factor the court deems
just and equitable. Marital misconduct is not a factor to be
considered in determining the amount of support, except for a criminal
conviction of an abusive spouse. The goal is specifically to make the
supported spouse self-supporting in a reasonable period of time
(generally considered to be half the length of the marriage).
[Annotated California Code; Section 4320, 4324, and 4330].?


DIVORCE SUPPORT.COM
California Spousal Support/Maintenance/Alimony Factors
http://www.divorcesupport.com/divorce/California-Spousal-Support-Maintenance-Alimony-441.html

FAMILY CODE SECTION 4330(b) states in part:

?When making an order for spousal support, the court may advise the
recipient of support that he or she should make reasonable efforts to
assist in providing for his or her support needs, taking into account
the particular circumstances considered by the court pursuant to
Section 4320, unless, in the case of a marriage of long duration as
provided for in Section 4336, the court decides this warning is
inadvisable.?

Section 4336(b), mentioned above defines a ?marriage of long duration? this way:
 
?(b) For the purpose of retaining jurisdiction, there is a presumption
affecting the burden of producing evidence that a marriage of 10 years
or more, from the date of marriage to the date of separation, is a
marriage of long duration.  However, the court may consider periods of
separation during the marriage in determining whether the marriage is
in fact of long duration.  Nothing in this subdivision precludes a
court from determining that a marriage of less than 10 years is a
marriage of long duration.?

The reason I mentioned this is because you are within mere months of
reaching this milestone. If you can convince the court that what you
had was a ?marriage of long duration? the court could, theoretically,
view your case differently. In other words, rather than simply
ordering a dissolution of the marriage and a typical division of
assets, the court could in fact treat the marriage a one of long
duration thereby consider awarding you the share of assets and support
beyond that which is awarded in shorter relationships.

There is however Section 4334(a) to contend with that says that the
court can award support ?for a contingent period of time? and that
?the obligation of the supporting party terminates on the happening of
the contingency.? What this means is that the court could (even if the
marriage is considered a long term marriage) award you support for,
say, 18 months, at which time the support might end.

It seems than that regardless of the laws of the state where alimony
and support are concerned, your spouse could theoretically return to
court at any time and file for a termination of support. Whether he?d
succeed is not something we can predict. These of course are issues
that you?d definitely be better off consulting an attorney about.

In short, we can?t tell you if you should accept the offer or not. A
lawyer might be able to tell you if this move in is your best
interest, but it does seem to me (in my opinion) that the argument
that he has actually been paying support in the form of a car payment
is not a viable claim, since the contractual obligation was his to
begin with. It is true that you are enjoying the car and he is not,
and that you may (or may not) in the end be required to compensate him
for his interest in the car when the property is equally divided.
However, if you are required to reimburse him for his interest in the
car, then (in my opinion) he certainly cannot claim that he paid
support in the form of a car payment if you pay him back, can he?

You may be able to use something of value as leverage in your
negotiation though. Because California is a community property state
it appears that you hold half interest in his pension if he has one.
According to the CALIFORNIA FAMILY LAW INSTITUTE you could press for a
division of his pension assets in the form of a "reservation of
jurisdiction," or a "cash-out" division. These types of division are
explained here in detail but essentially what it means is that his
pension could prove to be the ?gift that keeps on giving?. How funny
is that?

CALIFORNIA FAMILY LAW INSTITUTE
http://www.cfli.com/community-property.html

Armed with that information you may want to talk to a lawyer about
pulling out this ammunition if the negotiations start to get too
one-sided. It may very well be the secret weapon that forces him to
consider paying support and not making a big issue of it. Again, we
are not attorney?s and do not provide legal assistance. What I?ve
shown you is a matter of published law and my hope is that through
your visit here you are now well armed with information to speak more
knowledgeably and confidently with a licensed attorney. Many
attorney?s (or legal aid) gladly offer a free consultation and I
encourage you to take advantage of that option before acting on any of
this information.

I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.

Best regards;
Tutuzdad-ga ? Google Answers Researcher



INFORMATION SOURCES

CALIFORNIA FAMILY CODE
http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fam&codebody=&hits=20

FAMILY CODE SECTION 4320-4325 
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=04001-05000&file=4320-4325

FAMILY CODE SECTION 4330-4339 
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=04001-05000&file=4330-4339


SEARCH STRATEGY


SEARCH ENGINE USED:

Google ://www.google.com


SEARCH TERMS USED:

California

Divorce

Support

Alimony

Separate maintenance

Family law

Statutes

Code

Equitable distribution

Community property

Division

Assets

Viable

---

Request for Answer Clarification by justice4jackie-ga on 23 Nov 2005 12:19 PST

Thank you for your quick reply...just for clarification before I rate
your excellent response.  Your answer and discussion is a result of
"current" case precendence?  I have been overwhelmed recently by
research that involves Supreme court appeals that appear to override
family law codes.  Just checking!

---

Clarification of Answer by tutuzdad-ga on 23 Nov 2005 13:07 PST

Paying support for a defined (and limited) period of time as the
result of a "stipulation" is not uncommon, however in my research I
found no precedent in California that superceded state law (though an
experienced and knowledgeable attorney who has greater access to such
information might).

It is true that your spouse could theoretically win a case in which he
specified such a stipulation but my unlicensed guess is that his
victory might very well be due to lack of adequate representnation on
your part (i.e., you try to represent yourself, your lawyer isn't very
effective, etc.). The options at this point seem to be:

1. You can accept the stipulation and avoid a protracted legal battle,
and take what you get and go your way.

2. You can take your chances in court without good representation and
risk ending up with the same deal he is offering - of perhaps less.

3. You can get some good legal representation and take the battle to
him (after all, he may be bluffing).

It may be that he doesn't give you credit where credit is due in terms
of how, and to what extent, you might contest (or counter) his offer.
No matter what the precedent may be, with good representation you
can't lose. In other words, the worst that "might" happen is that you
walk out of court with the offer he tabled (and you're obviously going
to get that no matter what you do or don't do). The best case scenario
of course is that you walk out of court with much more. The fact
remains, however, that if you don't contest or counter you won't get a
nickel more than what has ben offered. (this is all opinion, you
understand, and not to be taken as legal advice - cause we don't do
that here, as I mentioned before).

I highly recommend you consult the California Bar Association and get
a credible referral to a lawyer that (a) meets your financial
capabilities, and (b) has some considerable experience in this area.
ALL your question can probably be addressed in a free, or low cost
initial consultation. Don't depend on recommendations from friends
alone, and don't choose a lawyer because he is merely convenient or is
your "family attorney" - and whatever you do, DON'T try to represent
yourself or agree to any stipulations without representation unless
you REALLY know what you're doing or you may get taken to the cleaners
on this deal. Remember the old maxim: "He who represents himself has a
fool for a client". Contact the Bar and they can give you an unbiased
referral based on your specific needs.

CALIFORNIA BAR ASSOCIATION
http://www.calbar.ca.gov/state/calbar/calbar_home_generic.jsp?cid=10174

Best of luck. Have a happy and safe holiday!
tutuzdad-ga

Very thorough and quick response. I appreciated the comments as
well...kind of like "good bedside" manners! Thank you so much.