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The Effect of Cohabitation on Alimony

Fri 31st Dec, 2021 Blogs

It is a clear and well-settled matter in California law that, absent an agreement to the contrary, spousal support payments (also known as alimony) end upon the remarriage of the supported spouse. The termination of alimony payments in these cases is automatic — the paying spouse is not required to file a motion with the court to terminate them. The effect of cohabitation — that is, living with a non-marital partner in an intimate relationship — is murkier. Generally, cohabitation will reduce or terminate a paying spouse’s alimony obligations, but not always, as a Stockton divorce lawyer explains below. 

What Counts as Cohabitation? 

California Family Code § 4323 does not define the term “cohabitation.” The paying spouse wishing to modify or terminate alimony obligations must therefore provide evidence that reasonably demonstrates that his or her former spouse is cohabitating. Cohabitation is considered to be something more than a roommate relationship but, absent direct evidence of a romantic relationship, the following types of evidence could be used to establish a cohabitation relationship: 

  • Using the same mailing address
  • Renovating a shared dwelling
  • Sharing expenses and household responsibilities 
  • Sharing childcare responsibilities 
  • Exchanging money for personal support 

In situations such as these, the spouse wishing to reduce or terminate alimony payments may want to consider hiring a private investigator to collect this kind of evidence. 

Cohabitation Can Reduce Alimony Payments

Evidence of cohabitation creates a rebuttable presumption that alimony payments should be modified or terminated. Under § 4323:

(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…

(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 a change of circumstances.

As shown above, the presumption that alimony should be reduced or terminated is rebuttable, meaning that the supported spouse can still present evidence that alimony payments continue to be warranted. Further, a reduction or termination of alimony payments based on cohabitation is not permanent; a future change in the supported spouse’s circumstances may serve as the basis for continued alimony payments. 

Defenses to Alimony Reduction Based on Cohabitation

There are several defenses available to supported spouses to rebut the presumption that alimony should be decreased or terminated. The most common is that the relationship is not cohabitation. The supported spouse may argue that the person he or she is living with is merely a roommate or that the arrangement is temporary and necessary to get back on his or her feet after a divorce. The supported spouse could also argue that his or her needs have not changed due to the cohabitation, such as by presenting evidence that his or her finances are the same as they were before the cohabitation began.  

Contact a Stockton Divorce Lawyer for Further Information

Alimony can be a sensitive subject for many couples, and California courts have a great deal of discretion when deciding whether, when, and how much alimony to award under any given circumstances. When these issues arise, you need an experienced Stockton divorce lawyer on your side. For more information, please contact McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.

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