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What do I do about SPOUSAL SUPPORT if my ex-spouse is COHABITING with another man?
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Q. My ex-wife is living with another guy. I am paying her spousal support per our settlement agreement. I have remarried, and this really upsets my present wife. Besides, I don't think it is fair. What can I do?
A. Where it can be negotiated, most lawyers who represent "payor" spouses attempt to write in a provision within the Marital Settlement Settlement Agreement that says cohabitation will terminate spousal support. If your agreement so provides, you have additional leverage to modify or terminate spousal support.
But even if your agreement, or the Judgment, doesn't say this Family Code section 4232 must be considered by the Court upon your application to modify or terminate spousal support. That section tracks the public policy of this state that you should not be underwriting your ex-wife's new household, or that you should not be made to pay her spousal support, where her expenses are being covered by a new romantic partner.
§ 4323 creates a rebuttable presumption for a decreased need for alimony once you convince the Court that your ex-wife is living with a person of the opposite sex, who is actually contributing to her expenses. This does not include persons who are simply opposite sex roommates. Look to establishing the length of their joint living circumstances, consider utilizing discovery to establish whether they have joint credit cards or household accounts, and be patient and don't file for relief too early. An ex partner may take on a roommate for purely financial reasons - that is not by itself cohabitation. On the other hand, even if you are not successful terminating support the first time, if they continue to live together you will have an improved chance at success a year or more later.
Don't expect to ever learn what that person earns. California law is pretty clear that you won't ever get that information. Look instead to what that person contributes to joint expenses, or to your ex-wife's expenses.
I do not recommend that you hire a private investigator to peek into their bedroom to establish that they have an intimate relationship. But what course you take may depend upon how she characterizes the relationship. For instance, if she claims there is not an intimate relation, then proving there is may be useful to you.
Additionally, even if your ex spouse is receiving financial benefits from her boyfriend or girlfriend, that does not mean that the Court will terminate as opposed to reduce her support - if the marital standard of living that the two of you enjoyed was high, and she is shacking up with a tennis coach, the Court might choose to reduce her support by imputing income to her commensurate with the benefits she is receiving rather than cutting her off entirely. Don't think that just because you feel violated that the Court will view it in the same way.
Finally, California law on cohabitation only speaks in terms of living with a person of the opposite sex. However, if the fact is that your ex-spouse is living in a romantic relationship with a same sex partner, it is hard to imagine that a courageous judge will not act to reduce your exposure. We have no appellate decisions on this question yet, but we will soon.
Thurman W. Arnold III
http://www.thurmanarnold.com
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Posted By Thurman Arnold on
May 14, 2010 07:14 pm |
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