Cohabitation and Spousal Support

Family Code, Section 4323 provides the legal authority about cohabitation and the spousal support obligation.

The codes section states “Cohabitation with nonmarital partner; rebuttable presumption of decreased need for support; modification or termination of support. (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.”

IS THERE A CHANGE IN CIRCUMSTANCES Unless the parties have “otherwise agreed” in writing, the supported party’s cohabitation with a nonmarital partner gives rise to a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support. In other words, the obligee’s nonmarital 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 obligee spouse.” Marriage of Bower (2002) 96 CA4th 893, 899, 117 CR2d 520, 525

IS THERE COHABITATION? ROOMATE? An obligor seeking a spousal support reduction or termination need simply show the obligee is now “cohabiting with a nonmarital partner.” ” nonmarital cohabitation relationship is not required: “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.” However, the statute contemplates more than a simple roommate or “boarding arrangement.” There must be a showing of a sexual, romantic or at least a “homemaker-companion” relationship. [See Marriage of Thweatt (1979) 96 CA3d 530, 157 CR 826; Marriage of Regnery (1989) 214 CA3d 1367, 263 CR 243—§ 4323(a) presumption inapplicable where alleged cohabitant shown to be renting “tenant”; compare Marriage of Bower, supra, 96 CA4th at 900-901, 117 CR2d at 525-526—parties’ relationship changed from mere “roommates” to “cohabitation,” triggering § 4323(a)(1) presumption] By the same token, a boarding or other cohabitation relationship that is not sufficient to trigger the statutory presumption might still amount to a factual change of circumstances warranting a support decrease—as where the supported party’s living expenses are partially offset by rent received from a tenant. The obligor may still prevail on a support decrease request, although without the aid of the statutory presumption.

WHOSE INCOME IS RELEVANT? Trial courts are statutorily barred from considering the income of a supporting spouse’s “subsequent spouse” or “nonmarital partner” when “determining or modifying spousal support.” [Fam.C. § 4323(b) (emphasis added); Marriage of Lynn (2002) 101 CA4th 120, 133, 123 CR2d 611, 621; see also Marriage of Khera & Sameer (2012) 206 CA4th 1467, 1482, 143 CR3d 81, 93—increased inequality of income, whether due to income from supporting spouse’s subsequent spouse or otherwise, is “not in itself a material change of circumstance”; Marriage of Romero (2002) 99 CA4th 1436, 1443, 122 CR2d 220, 225-226—“regardless of the effect of the new mate’s income on the supporting spouse’s finances, such additional income must not be taken into consideration”]

THEN THERE IS A BURDEN SHIFT TO THE PERSON WHO RECEIVES SUPPORT TO DEMOSTRATE THAT THEY STILL NEED SPOUSAL SUPPORT. In other words, the obligee’s nonmarital 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 obligee spouse.” [Marriage of Bower (2002) 96 CA4th 893, 899, 117 CR2d 520, 525

Contrary to popular belief, cohabitation by a spouse does not automatically terminate a spousal support obligation. You need to prove that it is a romantic relationship and then the burden shifts to the other party. The other party bears the burden of proving that they still need support in light of all of the factors under the code.

Don’t assume that this will happen automatically and it is important that you contact the attorneys at the Edgar & Dow to discuss your legal rights and obligation if you are facing this issue.