A friend of mine called the other day to tell me that she and her wonderful boyfriend were going to move in together after about a year. After all, they spent all their free time together already. She was quite glow-y and happy, but then I asked what she thought about the possibility of discontinuation of her spousal support.  Queue the screech of a ’70’s record needle here. Then I added if they had discussed a Cohabitation Pre-nuptial Agreement. Nope.

I felt like such a buzzkill.

“He’s not going to be contributing to the household, or paying any bills” she said.  It doesn’t matter.

If you pull out your own MSA (Marriage Settlement Agreement or Divorce Decree) and take a look there is likely a reference something to the extent that ‘an obligation of a party for the support of the other party terminates upon the death of either party, the remarriage of the other party, or further order of the court, whichever first occurs.’

With verbiage like that, there is often a false sense of security that only death or remarriage ends spousal support, which is not the case. Here’s some details that I had pulled together for her.

NOLO.com, a legal do-it-yourself website discusses “How Living Together Affects Current Alimony Payments” and how living with someone other than your ex-spouse can affect already-established alimony payments:

• California and Tennessee both presume that the recipient’s need for support has been reduced once he or she starts cohabiting. In other words, if you move in with a new partner, unless you can prove to a judge that you still need the same amount of alimony, it will be reduced or terminated.

Divorcenet.com gives an additional “Overview of Alimony in California” as:

• Alimony, also called “spousal support” in California, usually takes the form of monthly payments from one ex-spouse to the other, either for a specific period of time or until certain events occur. Alimony may also be paid in a lump sum, by a transfer of property, or by direct payment of other expenses (such as a mortgage).
• Courts order alimony to provide assistance to a financially dependent spouse based on each spouse’s financial circumstances after the court divides their marital property.
• Either spouse may ask the court to modify or end alimony, unless the couple’s written divorce agreement states that it can’t be modified. Courts generally require a significant change in circumstances, such as the income or needs of the supported spouse, in order to modify alimony.

The Office of the Attorney General for the State of California describes the issue of cohabitation and spousal support this way:

• You can lose most of your financial support from your ex-spouse if you have been cohabiting with someone else of the opposite sex and therefore need less money, unless otherwise agreed to by the parties in writing.
• The court may reduce your support until there is a change in your economic circumstances and you need support again. However, absent extraordinary circumstances, the income of the supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support. (Fam. Code, §§ 4057.5 and 4323.)⁽⁷⁾

On the website DivorceSD.com the consequences of cohabitation in a California divorce case were described

• One of the ways spousal support can be reduced in California after a divorce is to show that the recipient former spouse is “cohabitating” with someone else.  Specifically, Family Code section 4323, subd. (a)(1) states that “there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabitating with a nonmarital partner”.

Recently, The Court of Appeal relied on the cohabitation statute to uphold a San Diego family law court’s decision to reduce a spousal support order from $4,000.00 a month to zero.  In that case, entitled Marriage of Cosby, a unanimous panel of three justices held that “[t]here is clearly substantial evidence that Donna (the ex-wife) was, as of the time of (former husband) Bruce’s motion, cohabitating with (boyfriend) Todd.  In fact, there was evidence, in Donna’s Income and Expense Declaration and Todd’s declaration, demonstrating that Donna and Todd live together, that they share the cost of rent of their home, and that Todd pays all utilities related to their shared home”.

LegalZoom.com details:  How to Stop Alimony if an Ex Cohabits by Rob Jennings 

The burden of proving cohabitation rests on the paying spouse. To convince a court that your ex is cohabiting, you’ll need to produce evidence proving it. Some payors hire a private investigator to take pictures and watch the receiving spouse’s house. Testimony from neighbors, family members and children of sufficient age can also establish the existence of cohabitation. Bank records and credit card statements can shed light on expense-sharing arrangements. In the age of social media, the Internet can also be tremendously useful.

The definition of Cohabitation according to The Free Dictionary is: A living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.

This one is not California specific, but is a good (frightening) read in the Huffington Post, particularly the part about “Tips for Gathering Evidence to Prove Cohabitation”  Yikes.

DivorceNet.com does a good job walking through the various scenarios.

Termination or Modification of Alimony in California

When a supported spouse gets remarried, alimony ends automatically. However, if a supported spouse is simply living with someone else, or has an increase in income, the paying spouse needs a court order to lower or end alimony payments.

If you are paying alimony and your ex- spouse is living with someone else or has increased income, you should ask your ex-spouse to agree to lower or end alimony by agreement. You can sign an agreement and file it with your divorce court to modify or terminate alimony.

If you would like to modify or terminate alimony, but your ex-spouse won’t agree, you should file a motion to modify or terminate alimony with the court that granted your divorce. You’ll need to state how circumstances have changed and why that warrants a modification or termination of alimony. For example, your spouse’s increase in income, your spouse’s lowered needs, or your spouse’s living with another person in a romantic relationship may all qualify as a “change in circumstances” that the court can use to lower or end your alimony payments.

Impact of Cohabitation on Alimony

Under California law, there is a rebuttable presumption that alimony can be lowered, and possibly ended, when the supported spouse is cohabiting with a person of the opposite sex. The rebuttable presumption means that the court will presume alimony should be reduced or terminated unless the supported spouse can prove a continuing need for alimony payments after he or she begins living with someone of the opposite sex.

If the supported spouse will not agree to lower or end alimony, the paying spouse can file a motion asking the court to order the change. The court won’t consider the income of the person with whom the supported spouse is living when deciding whether to lower or end alimony, only the supported spouse’s new financial circumstances.

Cohabitation is more than a roommate relationship; it usually requires a personal romantic relationship. However, if the supported spouse is living in a roommate situation, the court may still decide that his or her need for support has decreased, and may still modify alimony.