Legal Question in Family Law in California

Re: Cohabitation

It is hard in these cases to give a "yes" or "no" answer - but I definitely have some thoughts to relay to you:

You state that you have a judgement and there is a modification request by your ex pending. I am assuming then that the spousal support provision in your judgement is in fact modifiable, without having read your judgement.

In that case, if you can establish that your ex is cohabitating with a person of the opposite sex, there is a rebuttable presumption, affecting the burden of proof, of a decreased need for support, unless the parties agree otherwise in writing.

It is not required that your ex and her boyfriend hold themselves out as husband or wife; however, some courts require at least a homemaker-companion relationship. There are numerous factors which will affect your ability to establish a "nonmarital cohabitation" relationship, including establishment of a "romantic involvement" (which isn't difficult to establish in most instances).

It appears that you definitely have the facts to, at the very least, pursue this avenue as a means to modifying (either reducing or eliminating) the spousal support award in your judgement.

Good Luck!

Reply: Cohabitation

Family Code Section 4323 states as follows:

� 4323. Cohabitation with person of opposite sex; rebuttable presumption of decreased need for support; modification or termination of support

(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.

For a specific opinion regarding your individual circumstances, I suggest that you consult with an experienced family law lawyer. Experience is not expensive, it's priceless!

You will find some valuable information on various California family law issues at my web site.

Good luck to you!

Brian Levy, Esq.

www.calattorney.com