Why and How Does Cohabitation Affect Alimony?
Cohabitation and alimony often collide after a California divorce judgment. The most common situation goes like this:
- A person pays alimony to his/her former spouse.
- Alimony in the divorce judgment states the amount and duration.
- The alimony may have a termination date if it was a short-term marriage.
- 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 (a same-sex partner is included in the rule). This cohabitation causes the alimony payor to request a modification or termination of the alimony order.
Let's explore cohabitation and its effect on alimony in more detail.
Cohabitation and Alimony Topics We Cover
- California Law on Cohabitation and Alimony
- Breaking Down Family Code 4323
- Meaning of Cohabitation
- Proving Cohabitation
- Arguments to Reduce or Terminate Alimony Because of Cohabitation
- Arguments Against Reduction or Termination
- Cohabitation and Alimony in Your Case
California Law on 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 in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court 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 with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.
(b) The income of a supporting spouse's subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.
(c) Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances."
Breaking Down Family Code 4323
Let's break down the code section. Remember that "alimony" and "spousal support" mean the same thing. We may use one or the other.
| You Can Reach an Agreement | The parties can agree to something different from what California Family Code 4323 states about cohabitation's effect on alimony. |
| No Agreement Means a Presumptive Reduced Need | Without 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. |
| The 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's) subsequent spouse is not a factor when determining or modifying alimony. |
| The 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. |
Meaning of Cohabitation
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 of boyfriends, girlfriends, etc., as examples...
If two people simply live together as roommates but no nonmarital cohabitating relationship exists, this code section may not apply.
I write "may not" because the California Family Code section does not specifically define what nonmarital partner means. In practical application, it goes beyond a platonic roommate relationship.
But keep this in mind: A roommate relationship may also be a proper basis for modifying alimony. Any significant circumstance that reduces an ex-spouse's needs (including the expenses he or she pays) may trigger a modification request.
Proving Cohabitation
There are several ways to prove cohabitation.
- 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 they realize that lying about it under penalty of perjury may have serious consequences beyond a spousal support reduction, they will become reasonable fast.
- 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 willing to lie under oath—most are not.
- Hiring a private investigator is a good but potentially expensive way to prove cohabitation. Sometimes, the private investigator must conduct a stakeout to get photos, and the dollars can add up.
- If the cohabitating ex-spouse is sharing utilities, a lease, or a mortgage, or there is other documentary evidence the two are intertwined financially and living together, you can get that information through the discovery process. You can potentially get this from the ex-spouse directly, issue a subpoena (for example, to the landlord), or both.
- Sometimes, witnesses can prove cohabitation. Neighbors, friends of the ex-spouse, or co-workers are great sources for that. Adult children are potential witnesses, although some parents hesitate to involve their kids, 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.
Arguments to Reduce or Terminate Alimony Because of Cohabitation
First, the spouse must show cohabitation with a non-marital partner.
Sometimes, this is obvious, and the other ex-spouse admits to it. However, that is not always true. That is where investigation becomes important, including hiring a private investigator.
A great 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.
- There should be witnesses to the cohabitation.
- There should be documents showing the relationship.
- A cohabitating ex-spouse should never get away with lying about the relationship because he or she has probably left a trail of evidence before knowing the other ex-spouse would seek a modification or termination.
Once a person shows cohabitation with a nonmarital partner, he or she can dig 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.
Arguments Against Reduction or Termination
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 that cohabitation is not a significant change in circumstance but a circumstance that existed on the date of the most recent order.
Cohabitation and Alimony in Your Case
There are many other arguments each side can make. The arguments depend on the case's specific facts.
That is why there is no substitute for quality legal advice. Do not represent yourself. Contact us for an affordable strategy session to discuss how cohabitation affects alimony in your situation.