What do I do about SPOUSAL SUPPORT if my ex-spouse is COHABITING with another man?

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. Lawyers who represent "payor" spouses often attempt to include a provision in the parties' Marital Settlement Settlement Agreement or divorce judgment that says future cohabitation between the support recipient and another person will terminate spousal support. If your agreement so provides, you may have leverage to modify or terminate spousal support.

But even if your agreement or the Judgment is silent about cohabitation, Family Code section 4323 creates a rebuttable presumption the she has 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 sharing income or contributing to her expenses. That section tracks the public policy of this state that you should not be underwriting your ex-wife's new household where her expenses are being covered by a romantic partner.

The section 4323 presumption isn't triggered solely because a man is living in your ex-wifes home. It does not cover persons who are simply opposite sex roommates, which as you would expect is the common explanation or story. An ex partner may take on a roommate for purely financial reasons - that is not by itself cohabitation. If you believe there is more to the relationship, look to establishing the length of their joint living circumstances, and utilize discovery to try establish whether they have joint credit cards or household accounts. If this is a new situation that you've just learned about, consider being patient and don't file for relief too early; let your ex's situation mature. If she is indeed in a romantic relationship, it will be increasingly unlikely that she will move him out in response to your motion.

Don't expect to 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.

Understand that even if your ex spouse is receiving financial benefits from her live-in, that does not guarantee that the Court will terminate as opposed to reduce her support - the statutory presumption is for a reduced need. 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 rather than cutting her off entirely because his contributions may be limited in light of the marital standard. Don't think that just because you feel violated that the Court will view it in the same way, although it might.

Up through 2014, section 4323 only spoke in terms of consequences for living with a person of the opposite sex. However, if an ex-spouse was living in a romantic relationship with a same sex partner, it seemed hard to imagine that a judge would not act to reduce your alimony obligation. We will never know how an appellate court might have answered the question, because effective January 1, 2014, section Amended Family Code section 4323 treats same-sex cohabiting the same as if it were opposite-sex cohabitation.

File a motion to terminate the support, but ask in the alternative that it be reduced. Even if you are not successful terminating support the first time, if they continue to live together you will have an improved chance on your next application.

Want to read more about the impact of cohabitation on support obligations?

Need to know how to terminate your spousal support orders?

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Thurman W. Arnold III