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In the vast majority of divorces in California where spousal support is awarded, the final judgment – whether reached through a trial or a settlement – will include a term saying that spousal support will terminate if either spouse dies or the receiving spouse remarries. So does that mean, a person receiving spousal support can continue to receive their full spousal support per the judgment if they move in with a new significant other, so long as they don’t get married?

Maybe, maybe not.

The most important concept to understand in determining whether your continued spousal support might be at risk is how California family law principles on “modification” might affect your award. In short, modification means that either party can come back to court after a divorce judgment is final and ask the court to either modify the support award either upwards or downwards based on there being a significant change of circumstances since the time of the judgment.

Basically, if your former spouse is paying you spousal support on the theory that you are owed that money to maintain the marital standard of living for a period of time, he or she may try to argue to the court that, because you are now living with someone else similar to the way you lived with them, that is a significant change of circumstance compared to the time of the divorce when you were presumably living without another adult to support you, and thus they should be allowed to pay you less or nothing in support.

What Does Your Judgment Say?

That said, the first step in determining whether your support award might be modifiable is to look at what your judgment actually says with regard to the ability to modify spousal support. Because these judgments are usually the result of the parties and perhaps their attorneys negotiating terms, there are any number of ways such a judgment might treat the issue of modifiability of spousal support. Some judgments are written to prevent either party from ever going back to court to modify support. Some judgments provide only specific situations in which support can be modified, which may or may not include cohabitation. Some judgments are based on the terms of a prenuptial agreement, which could specify if and how support can be modified. In any case, you will want to take a look at the operative documents in place (potentially with the assistance of an attorney) to determine whether your former spouse even has a right to ask the court to modify support based on your cohabitation.

Does Your Cohabitation Present a Significant Change of Circumstances?

Assuming there is nothing in your divorce documents which outright prevents your former spouse from seeking modification of support based on your cohabitation, then he or she would have to, again, persuade the court that this presents a significant change of circumstances since the time of the original judgment to warrant the modification.

Pursuant to California Family Code 4323(a)(1), 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,” and that, “Upon a determination that circumstances have changed, the court may modify or terminate the spousal support…” Importantly, though, the law also states that the income of your cohabiting partner will not be taken into account in determining support.

What this practically has meant in cases involving this type of situation is that courts will recognize that, when a person that was formerly living on their own and paying all their own expenses moves in with a romantic partner, that person’s expenses may likely go down as a result of sharing expenses or having the new romantic partner pay for those expenses. And, in such a situation, the burden of proof will be on the receiving spouse to provide evidence to the court that their income and expenses are such that they need to continue receiving spousal support to maintain the standard of living they are entitled to pursuant to the judgment.

Litigating this will likely involve filling out new Income and Expense Declarations, and may require a receiving party to produce financial documents and testify at hearings and/or in depositions regarding their situation. As with the divorce itself, it may make sense to negotiate a new support agreement with the former spouse to avoid unnecessary costs and stress, but litigating may be the only option, and, in such cases, it may be possible to recover attorney fees from the paying party who brings the modification action. In any case, it is important to move forward with skilled legal guidance regarding your spousal support rights.

Guidance on Your California Family Law Questions From a Westlake Village Family Law Attorney

If you would like to learn more about how our office can provide guidance on any California family law issues you are facing in Ventura County or Los Angeles County, contact the Zonder Family Law Group office today at (805) 777-7740 or (818) 877-0001, or schedule your strategy session using easy-to-use online form here.

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