Cohabitation and Alimony in California

When cohabitation and alimony collide, interesting things happen

What effect does cohabitation have on alimony in California?

Cohabitation and alimony often collide after a California divorce judgment.

The most common situation goes like this.

  1. A person pays alimony to his/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/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?

We will explore these questions in more detail.

What does California law state regarding cohabitation and alimony?

California Family Code 4323 sets the rule for cohabitation's effect on alimony.

(a) (1) Except as otherwise agreed to by the parties inwriting, there is a rebuttable presumption, affecting the burden of proof, ofdecreased need for spousal support if the supported party is cohabiting with anonmarital partner. Upon a determination that circumstances have changed, thecourt may modify or terminate the spousal support as provided for in Chapter 6(commencing with Section 3650) of Part 1.

(2) Holding oneself out to be the spouse of the person withwhom one is cohabiting is not necessary to constitute cohabitation as the termis used in this subdivision.

(b) The income of a supporting spouse's subsequent spouse ornonmarital partner shall not be considered when determining or modifyingspousal support.

(c) Nothing in this section precludes later modification ortermination of spousal support on proof of change of circumstances.

- Family Code 4323

What is California law really telling us about cohabitation's effect on alimony?

    Let us break down the code section. Remember the words "alimony" and "spousal support" mean the same thing. We may use one or the other.

    You and your spouse/ex-spouse can reach an agreement.

    The parties can agree to something different from what California Family Code 4323 states about the cohabitation's effect on alimony.

    No agreement means a presumptive reduced need.

    Absent that agreement, the ex-spouse (or if they are still married, the spouse) who lives with a non-marital partner has a presumptive reduced need for alimony.

    This presumption is not absolute.

    Rebuttable means the cohabiting spouse can offer evidence to show why he or she does not have a reduced need and should continue to receive the same alimony amount.

    Court has the power to reduce alimony.

    If the court determines there is cohabitation with a non-marital partner, the court has the power to modify or terminate the alimony.

    No need to hold the other out as a spouse.

    Cohabitation does not require one non-marital partner to hold the other non-marital partner out as his or her spouse.

    Subsequent spouse's income does not matter.

    The income of the ex-spouse's (or spouse) subsequent spouse is not a factor when determining or modifying alimony.

    Court's power to modify may continue into the future.

    Just because a court modifies alimony because of cohabitation does not mean the California court cannot modify it again at a future date. This presumes the court did not forever terminate alimony.

    What does cohabitation really mean?

    Cohabitation is more than being roommates.

    The code section uses the words nonmarital partner because it requires 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 nonmarital partnership does not exist, this code section may not apply.

    I write the word "may not" because the California Family Code section does not specifically define what nonmarital partner means. In practical application, we believe it goes beyond a platonic, roommate relationship.

    But be warned, a roommate relationship may also be a proper basis for a modification of alimony.

    Any significant circumstance that reduces an ex-spouse's needs (including the expenses he or she pays) may trigger a modification request.

    How do you prove cohabitation in California?

    There are several ways to prove cohabitation.

    1. The simplest way is to get the other person to admit it. Do they really want to commit perjury? They may lie 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 make become 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's 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. Sometimes, the private investigator needs to conduct a stake out to get photos and the dollars can add up.
    4. 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. You can potentially get this from the ex-spouse directly, issue a subpoena (for example, to the landlord) or both.
    5. Sometimes, there are witnesses that can prove cohabitation. Neighbors are a great source for that, as are friends of the ex-spouse or co-workers. Adult children are also potential witnesses although some parents hesitate to get their kids involved, even if they are 18 or over.

    The above are just some ways to prove cohabitation. Our family law firm customizes its approach to this issue based on the facts of the case.

    What arguments does the ex-spouse who wants to reduce or terminate alimony make?

    First, the spouse must show cohabitation with a nonmarital partner.

    Sometimes this is obvious, and the other ex-spouse admits to it. That is not always true.

    That is where investigation becomes important, including hiring a private investigator.

    A good family law attorney will engage in the proper investigation and, during the litigation, engage in formal discovery to reveal the cohabitation. While a cohabitating ex-spouse may initially lie about his or her cohabitation, a good family law attorney should flush out the truth.
    1. There should be witnesses to the cohabitation.
    2. There should be documents showing the nature and extent of the relationship.
    3. A cohabitating ex-spouse should never get away with lying about the relationship, because he or she has likely left a trail of evidence before he or she knew the other ex-spouse would seek a modification or termination.

    Once a person shows cohabitation with the nonmarital partner, he or she can delve into the reduced need for spousal support.

    That ex-spouse already has a presumption working for him or her. However, that does not mean the ex-spouse should assume he or she has a winning case.

    We recommend gathering all available evidence to show the reduced need.

    This reduced need may be significantly fewer personal expenses and/or the pooling of money between the nonmarital partners.

    What arguments does the cohabiting ex-spouse (or spouse) have against an alimony modification request?

    First, is there a real cohabitation with a non-marital partner or is this a roommate relationship? It is not always one or the other.

    There are gray areas, and if the gray supports the position this is a roommate relationship or a temporary arrangement, then the ex-spouse may use that to show the rebuttable presumption of Family Code 4323 does not apply.

    Second, if there is a cohabitation with a non-marital partner, it is not a guarantee of a reduction or termination of alimony.

    That cohabiting ex-spouse can show he or she does not have a reduced need.

    Showing the reasonable expenses at the time of the judgment (or the most recent order), versus the reasonable expenses today, may be at or near the same number.

    If they are, and the cohabiting spouse is still paying for all those same expenses, the cohabiting spouse has an argument he or she still has the same need.

    Third, when did the cohabitation with the non-marital partner start?

    Was it at or before the most recent alimony order?

    If so, the cohabiting spouse may argue the cohabitation is not a significant change in circumstance but a circumstance that existed on the date of the most recent order.

    Are there other alimony arguments because of cohabitation?

    Yes, there are many other arguments each side can make. The arguments depend on the case's specific facts.

    When you need legal advice, we are here to help

    There is no substitute for quality legal advice.

    Do not attempt to represent yourself.

    Contact us for an affordable strategy session and we can discuss how cohabitation affects alimony in your situation.

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