I am divorcing. The court ordered my husband to pay temporary child support and temporary spousal support. The support amounts are modest $173 in spousal and $137 in child support. I am a teacher in a private school and make $30,000 without benefits. My spouse makes $63,000. Does Family Code Section 4323 apply to my temporary support order or only to support paid after a divorce judment? My daughter and I recently (this month) moved in with my boyfriend. Apparently Family Code 4323 states that the fact of my cohabitation creates a rebuttable presumption that influences the "burden of proof" regarding a decreased need for spousal support since the supported party is cohabiting with a person of the opposite sex.
Family Law Attorney
Family Code 4323 applies to temporary spousal support as well as permanent spousal support. If you are living with your significant other I would expect your Ex to file to reduce spousal support.
Divorce / Separation Lawyer
The Ca Fam § 4323(a)(1) rebuttable presumption ( opposite-sex cohabitation decreases need for spousal support,) appears in the part of the Family Code governing permanent spousal support orders. It is therefore unclear whether the presumption applies to § 3600 temporary spousal support orders. [Marriage of Tong & Samson, supra, 197 Cal.App.4th at 29, 127 Cal.Rptr.3d at 862 & fn. 5.
Hence, the judge might invoke the presumption or might not
Divorce / Separation Lawyer
Nice job doing your homework on researching the law! Very good.
While I agree that FC 4323 is in the portion of the Family Code pertaining to permanent support orders, it does not necessarily mean that the Court will not invoke the presumption. Your best bet is to be prepared to rebut the presumption that there is a decreased need for spousal support and can do so by stating that the spousal support you are receiving is not enough to maintain the marital standard of living, blah, blah. There are many arguments a savvy and experienced family law attorney can make on your behalf--but you do need to speak with someone to assist you in articulating the correct legal arguments to make in court.
In the meantime, continue educating yourself on the law--it will make your conversations with your attorney more meaningful and less expensive (since he/she will not need to explain the basics and you both can focus on strategy and case preparation instead). I am including links below which may prove helpful. Good luck to you!
If you found this answer helpful, let me know by clicking the "Mark as Helpful" button or "Best Answer" at the bottom of this answer. By answering this question, the Law Offices of Cathleen E. Norton does not intend to form an attorney-client relationship with the asking party. The answers posted on this website should not be construed as legal advice. The Law Offices of Cathleen E. Norton does not make any representations about your family law matter, but rather, seeks to provide general information to the public about family-law related matters. You should consult with an attorney to discuss the specific facts of your case. Thank you.
1 found this helpful