Written by attorney Mark L Tseselsky

Cohabitation & Spousal Support Post-Judgment; Your Ex Has A New Partner, Can You Stop Paying $ Now?

Spousal support is designed to allow both ex-spouses to maintain the same living standard as they enjoyed during their marriage. It is also designed to help the supported spouse (the spouse receiving spousal support) to become self-sufficient. So far so good. This is fair.

But what if your ex wants to have his or her cake and eat it too? Does not need the support because he or she is now being supported by a new partner, but still expects you to foot the bill?

This article addresses a particular situation: the supported spouse continues to get spousal support even though they are living with a new partner. In other words, they want to have their cake and eat it too!

Here is the breakdown. The supported spouse of a long-term marriage (longer than 10 years) is living with someone new (cohabitation) but because he or she is technically not re-married he or she continues to get spousal support after the judgment of divorce has been entered.

If you are the supporting spouse (the spouse paying spousal support) still supporting your ex under these circumstances you may feel justifiably upset. So what can you do?

The short answer is: you may not be able to terminate spousal support altogether but you have a good chance to reduce it.

The supported spouse can fight to keep his or her spousal support despite cohabiting with someone.

Start by looking at your divorce judgment. What is the exact language regarding spousal support? Typically it states that spousal support shall continue until the supported spouse re-marries, dies or there is a further order of the court. If that is all it says, then the language is not going to affect the cohabitation situation. But if there is a written agreement that supported spouse's cohabitation with a person of the opposite sex shall not be a material change of circumstances then the supported spouse has the upper hand.

If there is no such agreement in writing, then the supported spouse has a fighting chance to reduce the spousal support. Here is the legalese: the supported party's cohabitation with a person of the opposite sex gives rise to a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support. Family Code Section 4323(a)(1). In other words, the supported party's opposite-sex cohabitation is a presumptive material change of circumstances justifying a spousal support reduction "because sharing a household gives rise to economies of scale ... [and], more importantly, the cohabitant's income may be available to the [supported] spouse." [Marriage of Bower (2002) 96 CA4th 893, 899, (brackets added; internal quotes and citation omitted)]

Translated into English it means that the supported spouse is on the defensive and has to present evidence to keep the spousal support the same or at least keep it even if it is reduced. And the supported spouse can do so if he or she rebuts the above-mentioned presumption by sufficient proof the cohabitation has not affected his or her need for support. Marriage of Schroeder (1987) 192 CA3d 1154.

In other words, the supported spouse has to show that his or her cohabitant has not contributed so much to the household that the supported spouse can now maintain the same standard of living as during marriage without the supporting spouse's help.

I will end with this caution to the supporting spouse. Before you consider modifying the support order talk to a lawyer or at least do some simple discovery (Family Code Sections 3660-3668) because you may open the door for an increase in the support amount if you make more money and the supported spouse makes less money than they used to at the time of the divorce.

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