Spousal Support
Another Successful Trial Completed-Cohabitation and Family Code 4323

Another Successful Trial Completed-Cohabitation and Family Code 4323

April 28, 2017

We completed another successful trial this week. The topic of this weeks trial was cohabitation and Family Code Section 4323.

The parties were married for 16 years and have been divorced for four years. It is a marriage of long duration-over 10 years. The judgment provides that husband is ordered to pay to wife the sum of $558 per month in spousal support. The parties income have stayed relatively the same since the divorce was entered 4 years ago. However, husband discovered that ex-wife is now cohabitating with her boyfriend.

Husband retains our office and we file a request for order to modify and/or terminate spousal support based on cohabitation and family code, section 4323. This sections states: 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 person of the opposite sex. 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 husband or wife 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.

The first prong of the test is to prove that they were cohabitating. In fact, wife essentially stipulated that she was cohabitating with her boyfriend. At this point, the burden of proof then shifts to her to prove that she still needs spousal support, in this case, $558 per month. At trial, we were able to prove that the boyfriend contributed at least $800 per month towards her living expenses. She was receiving more from boyfriend that she was in spousal support. Her need was $558 and the boyfriend was totally fulfilling the need and therefore, she no longer needed ex-husband’s spousal support.

This law makes sense right! The person who receives spousal support would just not get remarried because they know spousal support would be terminated. Instead they would just live together and continue to receive the spousal support from the ex-husband. The legislature enacted Family Code, Section 4323 to stop this from happening. Here are some of the examples from the case law as well. The obligee spouse’s cohabitation with a romantic partner may reduce the need for spousal support because sharing a household gives rise to economies of scale and, more importantly, the cohabitant’s income may be available to the obligee spouse.  In re Marriage of Geraci (App. 2 Dist. 2006) 51 Cal.Rptr.3d 234, Record did not support trial court’s finding that even if former wife’s cohabitant were paying half rental value of house, wife’s needs would not decrease to extent that it would affect support order;  gap between wife’s net employment income and expenses was $528, while half of rental value of house was $375, and in addition to shelter, cohabitant received other benefits including telephone and other utilities, meals, newspaper and perhaps laundry and cleaning, so that were cohabitant fully reimbursing former wife for these benefits, it is probable that former wife had no need for continued support.  In re Marriage of Schroeder (App. 2 Dist. 1987) 192 Cal.App.3d 1154. However, just because there is cohabitation does not mean that support will be automatically reduced. It is a presumption and it can be rebutted.

In our trial, the judge ordered that the spousal support be set at zero. The court would not terminate jurisdiction over spousal support because it was a long term marriage and divorce was only 4 years old. Nevertheless, it was a successful result for our client. If you are in this situation, we are free initial consultation at our offices located in Riverside, Temecula and Anaheim. Consult with any of our experienced family law attorneys. Please call (888) 251-9618.


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