Cohabitation and Spousal Support in California


Are you paying spousal support to someone who has moved in with his or her significant other? If this doesn’t seem right to you, keep reading because you may want to take action immediately.

Let’s assume the following scenario: You were married for 20 years. In the divorce you were ordered to pay spousal support to your ex until “further Order of the Court, remarriage, or the death of either party, whichever occurs first.” You have just learned that your ex has been living with a significant other for the past year. What do you do now?

Your objective will be to reduce your spousal support, to zero, if possible. The easiest way to obtain a reduction is if your ex will “stipulate”, or agree, to change the order. If that scenario presents itself, counsel should assist you in drafting a written stipulation to be signed by both parties. Once the Stipulation is filed, you have a new support order.

If a stipulation is not in the cards, you will have to file a Request for Order to modify or terminate spousal support. Filing the Request for Order will result in a hearing date, usually 60-90 days in the future. At the hearing the Court will decide whether to change your order. You will need to prove that a material change of circumstances has occurred since the order was entered. In other words, you have to show that something important has changed in the parties’ finances to warrant a reduction in support.

The court could find that your ex’s new living situation qualifies as a change of circumstances. Under Family Code §4323, a presumption of reduced need for spousal support arises when the supported spouse is “cohabiting” with a nonmarital partner.

What is “cohabiting”?

Case law defines cohabiting as “living together as man and wife”, but without the requirement of marriage. Keep in mind that cohabiting does not mean that sometimes your ex sleeps over, or spends a weekend, with his or her significant other. Nor does it mean that your ex and a roommate are splitting expenses. Cohabiting requires romance plus living together. The law now expands the definition of cohabitation to include same-sex partners.

How do I prove my ex is “cohabiting”?

At your hearing, the Court will apply the rules of Evidence. The Court will not consider your evidence unless it is admissible. Not all evidence is admissible in a court of law.  Social media, witness testimony and documentary evidence may prove cohabitation. However, the rules of evidence may limit the admissibility of such information. This is why you need experienced Orange County spousal support attorneys to make sure your cohabitation evidence is admissible.

It is also possible that your ex will admit to cohabitation, but argue that support is still necessary. More on that below.

If you are not sure your ex is cohabiting, you should consult with a skilled family law attorney to develop a strategy for proving cohabitation early in your case.

Let’s say I can prove cohabitation, can I tell my ex to wave good bye to spousal support?

Not so fast. Even though you can prove cohabitation, you will still need permission from the Orange County Family Court to reduce your spousal support obligation. In addition to evidence of cohabitation, the Court will analyze all of the factors under Family Code §4320 and hear evidence relevant to rebutting the presumption of reduced need for support.

What evidence is persuasive to rebut the presumption of reduced need for spousal support?

As stated above, the Court will analyze all of the “4320 factors.” One of the most important 4320 factors is the marital standard of living. Essentially, the marital standard of living tells the Court how much money each spouse needed to make ends meet during the last few years of the marriage. Your ex will try to convince the Court that despite the cohabitation, the marital standard of living cannot be maintained without the current level of support. The Court has to consider how the cohabitation impacts your ex’s ability to maintain the marital standard of living.  If your previous orders do not define your marital standard of living, or state that the current order does not maintain your marital standard of living, the Court will take evidence of that factor at your hearing.

CAUTION: The Court’s finding of your marital standard of living is critical to the outcome of your spousal support hearing. You should consult with experienced counsel to make sure the necessary evidence of the marital standard of living is before the Court.  

Also be aware that the supported party will try to convince the Court that he or she does not rely on the financial support of the cohabitant/significant other. To counter that argument, it is crucial to conduct the proper discovery in time before the hearing. Again, seasoned counsel will know what kind of information you need to gather to be successful.

Do I have to show that my ex’s significant other is financially supporting my ex? 

No, but it sure helps. If you prove that the significant other pays all of your ex’s bills or provides other financial support, you will have a very persuasive argument to reduce or even terminate spousal support. But even if you do not have this proof, courts have recognized that direct financial support from the cohabitant to the supported spouse is not required to show reduced need. In fact, as long as your ex is splitting expenses, such as the rent and utilities, with the significant other, the Court can make a finding that the supported spouse’s need for spousal support has been reduced.

If my ex moves out before my spousal support hearing, does the presumption of reduced need apply?

Prepare for the possibility that your ex will change his or her living situation upon service of your motion to reduce support. For this reason, it is important for you to have enough evidence of cohabitation before you file your motion. While no reported case in this state deals with a situation where the supported spouse’s cohabitation ends before the spousal support trial, the Court can use its discretion within the 4320 factors to price in the past cohabitation in the current order. The family court is a court of equity. Such a transparent maneuver will likely be considered in the Court’s ruling. The Court may also weigh the move-out in your ex’s attorney’s fees request.

The Court is vested with broad discretion in determining spousal support. The outcome of your case will hinge upon the credibility of your testimony and the weight of your evidence.

Now what?

Before you do anything else, contact the experienced Orange County divorce attorneys at Wilkinson & Finkbeiner, LLP at 949-955-9155 so that we can set you up with a free, confidential consultation. We practice regularly in all family law courts in Orange County and are here to help.