When Cohabitation & Alimony Collide – Intersecting Things Happen

According to an experienced family law attorney in Orange County, alimony and cohabitation often collide after a California divorce judgement. The most common situation goes like this:

  1. A person pays alimony to his or her former spouse
  2. The divorce judgment states the alimony amount and duration of the alimony payment
  3. If it was a short-term marriage, the alimony may have a termination date
  4. If it is a long-term marriage, the alimony duration may be open-ended

After the divorce judgment, the ex-spouse who receives alimony cohabitates with a non-marital partner with whom he or she has a relationship, which includes a same-sex relationship. This cohabitation causes the payor of alimony to request a modification or termination of the alimony order.

  1. What does cohabitation mean?
  2. Do the specific circumstances matter?
  3. Does cohabitation really reduce or end alimony in California?
  4. What arguments does each former spouse have for and against modification of alimony because of cohabitation?

What does California law state regarding cohabitation and alimony?

As a practiced family law attorney in Riverside explains, California Family Code 4323 sets the rule for cohabitation’s effect on alimony.

  1. Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 of Part 1.
  2. Holding oneself out to be the spouse of the person with whom one is cohabitating is not necessary to constitute cohabitation as the term is used in this subdivision.
  3. The income of a supporting spouse’s subsequent or non-marital partner shall not be considered when determining or modifying spousal support.
  4. Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances.

What does cohabitation really mean?

Cohabitation is more than being roommates. The code section uses the words non-marital partner for the reason that it necessitates an interpersonal relationship like that of a romantic relationship. Think boyfriends, girlfriends, etc. as examples.

If two people simply live together as roommates, but that non-marital partnership does not exist, this code section may not apply.

How do you prove cohabitation in California?

There are several ways to prove cohabitation, such as:

  1. The easiest way is to get the other person to admit it. Do they really want to commit perjury? They may life before a court action but once the reality hits that lying about it under penalty of perjury may have serious consequences beyond just a spousal support reduction, they may turn out to be reasonable, fast.
  2. It takes two to cohabitate so one way to prove it is to subpoena the other person and take their deposition. Let us see if that person is also willing to lie under oath – most do not.
  3. Hiring a private investigator is a good but potentially expensive way to prove cohabitation. At times, the private investigator needs to carry out a stake out to get photos and the dollars can add up.
  4. A professional San Bernardino family law attorney suggests that if the cohabitating ex-spouse is sharing utilities, a lease, a mortgage or there is other documentary evidence the two of them are intertwined financially and living together, you can get that information through the discovery process of the litigation.
  5. At times, there are witnesses that can prove cohabitation. Neighbors are a wonderful source for that, as are friends of the ex-spouse or co-workers. Adult children are even potential witnesses even though some parents hesitate to get their kids involved, even if they are 18 or over.

The above are just a few ways to prove cohabitation. The law Offices of Sood and Sood customizes its approach to this issue depending on the facts of the case.

When you need legal advice, you can always count on Sunita Sood. There is literally no substitute for quality legal advice. Do not attempt to represent yourself. Feel free to get in touch with a specialist family or domestic violence lawyer in Orange County at The Law Offices of Sood and Sood for an affordable strategy session!