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Cohabatation and Spousal Support after the Divorce

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

This article is not designed to be comprehensive on spousal support. This article focuses on a situation when the supported spouse of a long-term marriage is living with someone new (cohabitation) but because he or she is technically not re-married continues to get spousal support after the judgment of divorce has been entered.

Under these circumstances:

If you are the supporting spouse (the spouse paying spousal support) 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.

If you are the supported spouse, know that you can fight to keep 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, 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 since the divorce.

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