In a previous blog I tackled the subject of how long couples can expect spousal support to last upon the conclusion of their divorce. One of the considerations mentioned at that time was the impact of cohabitation on one’s right to continue receiving support and the other’s right to stop paying it or at least reducing the amount to be paid. This can be a very emotionally charged issue as the payor often will feel strongly that they should not be required to continue paying support once the former spouse has moved on to a new committed relationship, while the supported spouse feels they are kept under the microscope as they move on with their lives and choosing to move in with a new partner does not mean that person is in any sort of a position to contribute to the supported spouse. Over the years I have litigated a number of these situations and have also worked with a number of couples addressing the cohabitation issue through mediation. The only clarity I have gathered through all my work with it over the years is that it is not very clear. We attorneys like to provide our clients with a clear understanding of what to expect when we present their case and arguments to the Court for determination. As you will see, this is a tall order when the issue involves cohabitation. Given this uncertainty, working to address the issue through mediation can be a great option to fashion a resolution that may not be ideal, but provides for an acceptable outcome for payor and payee.
Cohabitation and Family Code 4323 When tackling the cohabitation issue, we start with taking a look at Family Code 4323 which states: “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.”
More simply put, if a spouse who is receiving spousal support moves in with someone with whom they are in a relationship with, it is presumed that they now have less need for support which warrants a review of the support issue. It is only a presumption and the supported spouse does have the ability to overcome the presumption by providing evidence that moving in with the partner has not reduced their need for support. The pressing questions are first, is the supported spouse actually living with the new partner, and second, do they have a romantic relationship and are not just roommates. It can be a challenge to simply get over these two hurdles. Let’s say there is agreement that the supported spouse has moved in and is cohabiting with a new romantic partner. Now the real work begins.
Cohabitation and Family Code 4320 While Family Code 4323 opens the door to a review of spousal support, there is still a whole analysis under Family Code 4320 that must be done. While remarriage and death are events that terminate spousal support altogether (see Family Code 4337) cohabitation is not a terminating event, and is instead considered a possible change of circumstances that warrants reviewing the issue. Once a permanent support order is made, it cannot be changed unless the party seeking the adjustment can show that something happened that sufficiently changes the financial circumstances to warrant changing the support number. Family Code 4323 establishes cohabitation as a presumed change of circumstances. Now, the Family Code 4320 analysis is “let’s see what has actually changed”. When considering what has changed, we first look at what the circumstances were when the support was set. The factors to be considered include: (1) the marital standard of living, (2) ability to pay of the supporting spouse, (3) need of the supported spouse, (4) duration of the marriage, (5) age and health of the parties, (6) any history of domestic violence, and (7) any other factors the court finds relevant and equitable.
When there is cohabitation, the primary factor we are focusing on is how the cohabitation has impacted the needs of the supported spouse. The presumption under 4323 is that the needs of that spouse have gone down. Even without Family Code 4323, when somebody begins living with a roommate rather than living on their own, at first glance it appears that household expenses will go down. Expenses such as rent and utility costs will now be shared between two people rather than solely covered by one. With a roommate the burden would be on the support payor to prove reduced need while with cohabitation the burden shifts to the supported spouse to show that their needs have not changed.
There are many considerations here. What if the new partner is unemployed, or is barely in a position to provide for themselves. What if sharing rent in a bigger place is similar to the rent previously being paid by the supported spouse for their own smaller place? What if the new partner has substantial debt, or prior children and financial responsibilities of their own? The point to be made is that all of these considerations come into play once the cohabitation is established and the end result can be that the cohabitation has really not changed anything and the support should continue as previously ordered.
All or Nothing and Everything in Between Modifying spousal support upon cohabitation is not necessarily an all or nothing proposition. The Court can be convinced to make no change. The Court can be convinced to reduce support to zero. More likely, the Court will decide to do something in between. With such a range of possibilities it is very hard to feel sure about what the Court might do. In some situations it might be more obvious that the Court will clearly make a change, but many times there is great uncertainty. Given this, addressing the issue through mediation can be a great opportunity to come up with a solution that is not all or nothing. Through mediation I typically help couples explore the strengths and weaknesses in each of their positions to assess the likelihood and amount of any change that might take place. I make it very clear that we are only making educated guesses given the circumstances and one Judge could feasibly go one way and another Judge could make a completely different decision. Deciding to go somewhere in between can move the couple to an outcome that is not necessarily their first choice, but is one that is bearable for both.
Life moves on after divorce. There might be new relationships waiting just around the corner. When one spouse is receiving support it can be a very big decision to leave the financial assistance of the prior spouse behind and move into a new relationship. While making the decision to marry is clear that the spouse is letting go of spousal support altogether, when making a decision to move in with a new partner there is a lot of uncertainty on what the financial outcome might be. One possible solution is to address the option with the supporting spouse and negotiate an adjustment to the support given the anticipated move prior to the move taking place. Doing so can provide clarity in the support expectations so that the issue isn’t coming up after the move has happened and the supporting spouse has caught wind of the cohabitation. However the issue comes up, it remains a very challenging and uncertain issue that oftentimes can best be addressed by the couple working together and exploring a solution that carefully considers the ever changing financial circumstances of both households.