Q. If my wife is living with a male renter, and I suspect they are boyfriend-girlfriend,
does this affect the amount of spousal and child support that I have to pay?
A. The supported party's cohabitation with a person of the opposite
sex gives rise to a rebuttable presumption affecting the burden of proof
of decreased need for spousal support.
FC § 4323(a)(1). It has no impact on child support obligations, however.
FC § 4323 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.
As stated in
Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 238 Cal.Rptr. 12,
"the policy underlying section 4323 is a legislative acknowledgment
that cohabitation may reduce the needs of the supported spouse. The arrangement
between Wife and Lara elevates form over substance. By receiving reimbursement
by way of 'gifts,' Wife's cash needs for support purposes
appear unchanged despite cohabitation. While cohabitants are at liberty
to deal with each other as they see fit, their 'contract must be fair
and reasonable with respect to the rights of [the] supporting spouse.'
The trial court here failed to recognize that the allocation of expenses
between Wife and Lara undermines the statute and acts to Husband's
The record strongly indicates Wife's needs have decreased as a result
of cohabitation. We remand to the trial court for a factual determination
of the extent of her reduced need, with due consideration for the value
of the benefits received by her, as well as the value of the benefits
conferred upon Lara."
Schroeder involved a post judgment modification of a permanent support order by
the payor, not an initial pendente lite request by the supported spouse.
The evidence was the former wife had been living with a man of the opposite
sex for 18 months, that he didn't pay rent, that he was regularly
employed, that he did not contribute to utilities, but that he did contribute
to joint vacations. The appellate court found those facts to strongly
suggest a cohabitation. Even then, the issue on remand was not a termination
of the support obligation but a determination of the value of the benefits
incurred by the former wife which might reduce her needs.
Cohabitation has been loosely defined as not necessarily holding oneself
out to be Husband and Wife, but is more than a simple roommate or "boarding
arrangement." There must be a showing of a sexual, romantic or at
least a "homemaker-companion" relationship.
Marriage of Regnery (1989) 214 CA3d 1367, 263 CR 243.
Marriage of Geraci (2006) 144 Cal.App.4th 1278 reversed a trial court failure to consider
the effect of an admitted cohabitation lasting several years with the
The court's judgment also does not take into consideration the evidence
Jane had been cohabiting since the parties separated in 2000, despite
John's requests for findings on the issue. Section 4323 states "there
is a rebuttal 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. . . . "Cohabitation may reduce the need for
spousal support because 'sharing a household gives rise to economies
of scale. [Citation.] Also, more importantly, the cohabitant's income
may be available to the obligee spouse.' (In re Marriage of Schroeder
(1987) 192 Cal.App.3d 1154, 1159 [238 Cal.Rptr. 12].)" "[T]he
Legislature created the presumption . . . based on thinking that cohabitation
. . . creates a change of circumstance so tied in with the payment of
spousal support as to be significant enough by itself
to require a re-examination of whether such need for support continues
in such a way that it still should be charged to the prior spouse." [Italics added].
* * *
At trial, however,
Jane testified she had no intention of marrying him. Jane's father,
by contrast, testified he hoped they would soon marry. The evidence showed
her boyfriend supplied Jane with housing, with a leased car and a credit
card in her name for her use. Jane testified she was supposed to pay him
back for all her expenditures, including the equivalent of $1,000 a month
for rent, whenever she became financially able to do so. She testified
she then owed her boyfriend more than $30,000 in back rent, credit card
and other debt. According to Jane's evidence, she contributed to the
household by providing domestic services.
The foregoing is substantial and material evidence Jane was cohabiting
within the meaning of
section 4323 and might have a lesser need for spousal support than the court awarded
had it considered this circumstance. However, there is nothing in the
record to indicate the court fairly considered Jane's cohabitation
when determining the type and amount of spousal support to award her.
Marriage of Bower (2002) 96 Cal.App.4th 893,117 Cal.Rptr.2d 520 there were two
permanent support modification hearings filed by the payor husband, one held in
1997 and the second in 2000. At the 1997 hearing the evidence was that
the Wife was sharing expenses and living full time at a residence with
a man described as a 'roommate.' The
Bower court noted that the Husband had been wise in not appealing that order.
However, by the time of the second application
over three years later in 2000, there was evidence that she was sharing at least one bank account
with her "roommate," and she even stipulated she was cohabiting.
Under those circumstances, together with evidence of an increased income
from her employment, it was not an abuse of discretion to reduce the Wife's
spousal support and then terminate it at the end of one year.
Bower and those cases cited herein regarding cohabitation are dealing
with modifications of Permanent Spousal Support orders. They all are based
upon the "two can live more cheaply than one" theory or upon
actual expenses of the supported party being regularly paid for by the
cohabitant beyond loans and gifts. There is no reported case that upholds
a trial court refusal to provide spousal support at the temporary hearing
stage. However, I suspect most courts will apply the presumption there as well.
The philosophy underlying the cohabitation statute is that parties who
share a household and live in a meretricious relationship should not benefit
by continuing to receive spousal support without consideration of the
reduced need this sharing produces.
Finding cohabitation just allows for the aid of a statutory presumption
to assist in the presentation of factual evidence. The effect is the same
without the presumption even for mere roommates, as those contributions
to the obligee's living expenses may also support a factual finding
sufficient to modify spousal support since rent is income.
Nonetheless, cohabitation is offensive to some judges and they be willing
to terminate the spousal support obligation instead of merely reducing it.
Note that once you prove a cohabitation the burden of proof shifts to
the supported party to show that they still need support. That is their
problem, not yours. Nonetheless, if you can show a substantial reduction
or the end of any need for alimony you would be well advised to present
Finally, you are not entitled to know the income of the other party as
new-mate income cannot be considered by the Courts.
For domestic partnerships, even though the statute speaks in terms of
opposite sex couples it is highly unlikely that a trial court would not
reduce or terminate partner support with a same-sex couple where male
former partner is cohabiting with a male and so on. Since 2005 the California
Family Code is to be interpreted as applying equally to same sex couples
who are in a legally recognized relationship.
If a gay man (as opposed to bi-sexual male) is now living with a female
should the opposite sex presumption be applied? The answer would seem
to turn on whether the relationship is romantic and/or intimate and not
on the identity of genders. Similarly, if a former wife is now living
with a female roommate and it can be established that relationship is
intimate, then the same reasoning as in the above cases will likely apply.
We await appellate court pronouncements on these interesting questions.
[Note, four years later, in
July, 2014, Family Code section 4323 was amended to strike the "person of the opposite sex" language and replacing
with the phrase "nonmarital partners." - TWA]
Thurman W. Arnold III
September 16, 2010