alimony-taxes

I've heard that I can go to court to stop alimony if I can prove my ex has been living with a man for over 90 daysin Ca.Is this true?Also my ex does'nt work or file taxes.Can I claim my children on my taxes without her permission?She won't let me.Nothing was specified on divorce papers.Any advice?

------------------

[I AM ALWAYS LIABLE]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by jose:
[b]I've heard that I can go to court to stop alimony if I can prove my ex has been living with a man for over 90 daysin Ca.Is this true?Also my ex does'nt work or file taxes.Can I claim my children on my taxes without her permission?She won't let me.Nothing was specified on divorce papers.Any advice?

[/b]<HR></BLOCKQUOTE>


My response:

I have no idea where you heard or read about the 90 day thing. As soon as your ex starts a sexual cohabitation with a nonmarital, working partner, your chances increase dramatically to win a reduction of spousal support.

However, Family Code Section 4323(b) uses the terms "subsequent spouse" or "nonmarital partner" without definition. If those terms are construed in their commonly-accepted sense to mean only a new spouse or "Marvin cohabitant," trial courts considering a requested spousal support increase should still be able to consider as a "changed circumstance" income the obligor receives from any other third party--e.g., a roommate (third party rental income) or other relative.

On the other hand, the statute does not preclude the court from considering the obligor's increased expenses on account of a new marriage or nonmarital cohabitation. (Section 4323(b) refers only to the income of a supporting spouse's subsequent spouse or nonmarital partner.) [Cf. Ca Fam Sec.4323(c)--"Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances"]

There is a presumptive decreased need for support on account of opposite-sex cohabitation. Unless the parties have otherwise agreed in writing, the supported party's cohabitation with a person of the opposite sex gives rise to a rebuttable presumption (affecting the burden of proof) of decreased need for spousal support. [Ca Fam Sec.4323(a)(1)]

Thus, pursuant to Sec.4323(a)(1), the obligor will prevail on a request to terminate or reduce spousal support upon proof the supported party is living with a person of the opposite sex . . . unless the parties agreed in writing this occurrence would not be a basis for modification or the obligee rebuts the presumption by sufficient proof the cohabitation has not affected his or her need for support. [See Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 238 Cal.Rptr. 12--court erred in failing to reduce support for ex-wife who had commenced nonmarital cohabitation]

Triggering "cohabitation": An obligor seeking a spousal support reduction or termination need simply show the obligee is now "cohabiting with a person of the opposite sex." A "Marvin-type" nonmarital cohabitation relationship is not required: "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." [Ca Fam Sec.4323(a)(2)]

"Boarding arrangement" not enough: However, the statute contemplates more than a simple "boarding arrangement." There must be a showing of a sexual, romantic or at least a "homemaker-companion" relationship. [See Marriage of Thweatt (1979) 96 Cal.App.3d 530, 157 Cal.Rptr. 826; Marriage of Regnery (1989) 214 Cal.App.3d 1367, 263 Cal.Rptr. 243--Sec.4323(a) presumption inapplicable where alleged cohabitant shown to be renting "tenant"]

By the same token, a boarding or other cohabitation relationship that is not sufficient to trigger the statutory presumption might still amount to a factual change of circumstances warranting a support decrease--as where the supported party's living expenses are partially offset by rent received from a tenant. The obligor may still prevail on a support decrease request, although without the aid of the statutory presumption. [See Ca Fam Sec.4323(c)--"Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances"]

As to your other questions, see your local Family law attorney for guidance, and concerning the above matter.

IAAL


------------------
By reading the “Response” to your question or comment, you agree that: The opinions expressed herein by "I AM ALWAYS LIABLE" are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed to you in this site are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with "I AM ALWAYS LIABLE," on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney's advice and counsel for your questions responded to herein by "I AM ALWAYS LIABLE."



[This message has been edited by I AM ALWAYS LIABLE (edited June 13, 2000).]