Spousal support is sometimes but not always awarded in a California divorce to help one spouse adjust to life without the shared financial support of the marriage. Spousal support may be awarded for a specific duration (e.g. monthly for five years) or it may be awarded for an indefinite period of time. Both paying and receiving ex-spouses can petition the court for a modification of the award (except when there is an order and/or agreement prohibiting modifications), and a paying spouse may also seek a termination of the spousal support award. Marriage by the receiving spouse is a common, justifiable reason for terminating spousal support, but, as we all know, it is increasingly common for couples to cohabitate rather than obtain a marriage, and this is not at all uncommon among formerly divorced people. Because cohabitation can provide much of the same financial support for an ex-spouse as would a remarriage, this raises the question of whether a paying spouse can seek termination of spousal support when the receiving spouse is cohabitating with a new romantic partner.
California Courts Can Use Cohabitation as a Justification in Modification/Termination
Under California Family Law Code 4323(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,” and that upon a determination that cohabitation has changed the receiving spouse’s circumstances, “the court may modify or terminate the spousal support...”
Note that, up until a few years ago, the code referred to “cohabitating with a person of the opposite sex” but the wording is now changed to “cohabitating with a nonmarital partner.” This means that if you were in male-female marriage, and your ex-spouse is now cohabitating with a same-sex partner, this can be grounds for modifying or terminating spousal support.
Roommates vs. Cohabitants
The issue that often arises in these types of actions is whether the alleged cohabitation is actually just a shared-living situation between “roommates” (in which a modification/termination would not be justified) or whether it is a romantic cohabitation similar to marriage which would justify a change. The court can look at a wide spectrum of evidence in making this determination, such as whether the living partners are dating, whether they share bank accounts or titles on property, and so on.
Keep in mind that the paying spouse can never unilaterally stop or reduce payment on spousal support under a court order and can only do so after receiving a modification or termination from the California courts.
Get Answers to Your Legal Questions on California Divorces
To schedule a consultation to discuss any issues related to spousal support in a California divorce or any other questions or concerns you have about the California divorce process, contact one of the family law attorneys at Kearney Baker today.