Spousal Support

[novembersea]

What is the name of your state? Ca

I was married for 10 1/2 years and my decree says I get spousal support for 5.5 years unless I marry, die, or co-habitate. I have a child with a medical condition, so therefore did daycare since he was 1, he is now ten. I have 2 years left with spousal support. I also go to school fulltime to get my education, I already managed an A.S. and am planning on going to work soon to get a start. My ex makes about $80,000 a year and I get 836 a month. My boyfriend lives with his mother, but is here 90% of the time. He does not recieve mail here, nor does he pay my bills. If it wasnt' for him staying over here, then we wouldn't see each other with my school schedule. (my son considers it living together, cause he sees him all the time) My ex keeps saying he is going to take me to court for co-hab. He does have some things here, but what does he need to prove a co-hab? Also, when I go back to work before it ends, can he have it reduced when I will only be making about $11 an hour? I just want to get a start and hope that I can at least make $13 by the time support ends..

 

[I AM ALWAYS LIABLE]

What is the name of your state? Ca

I was married for 10 1/2 years and my decree says I get spousal support for 5.5 years unless I marry, die, or co-habitate. I have a child with a medical condition, so therefore did daycare since he was 1, he is now ten. I have 2 years left with spousal support. I also go to school fulltime to get my education, I already managed an A.S. and am planning on going to work soon to get a start. My ex makes about $80,000 a year and I get 836 a month. My boyfriend lives with his mother, but is here 90% of the time. He does not recieve mail here, nor does he pay my bills. If it wasnt' for him staying over here, then we wouldn't see each other with my school schedule. (my son considers it living together, cause he sees him all the time) My ex keeps saying he is going to take me to court for co-hab. He does have some things here, but what does he need to prove a co-hab? Also, when I go back to work before it ends, can he have it reduced when I will only be making about $11 an hour? I just want to get a start and hope that I can at least make $13 by the time support ends..

My response:

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 § 4323(a)(1)]

In other words, the obligee's opposite-sex cohabitation is a presumptive material change of circumstances justifying a spousal support reduction "because sharing a household gives rise to economies of scale . . . [and], more importantly, the cohabitant's income may be available to the obligee spouse." [Marriage of Bower (2002) 96 Cal.App.4th 893, 899, 117 Cal.Rptr.2d 520, 525 (brackets added; internal quotes and citation omitted)]

Thus, pursuant to § 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 § 4323(a)(2) (emphasis added)]

"Boarding arrangement" not enough:
However, the statute contemplates more than a simple roommate or "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--§ 4323(a) presumption inapplicable where alleged cohabitant shown to be renting "tenant"; compare Marriage of Bower, supra, 96 Cal.App.4th at 900-901, 117 Cal.Rptr.2d at 525-526--parties' relationship changed from mere "room-mates" to "cohabitation," triggering § 4323 (a)(1) presumption]

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 § 4323(c)--"Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances"]

Tell lover-boy to pack up and stay out. Otherwise, at the very least, expect your ex to be successful in reducing his spousal support obligation.

IAAL

 

[novembersea]

Is "hearsay" she said he said proof? Wouldn't he need some type of proof that I recieve money or he "lives" with me? I understand the statute/cases, I just don't understand what would be admissable, and what he would need. i.e. P.I. or bills or bankstatements? I just don't want to lose support because he "says" we live together..Maybe it depends on the judge? Also, why do people keep telling me that I should have gotten more than 5 years of spousal on a long term marriage? Would that come into play with him wanting a reduction, as well as myself doing what is needed to make improvements even with a child that has medical need...

 

[LdiJ]

Is "hearsay" she said he said proof? Wouldn't he need some type of proof that I recieve money or he "lives" with me? I understand the statute/cases, I just don't understand what would be admissable, and what he would need. i.e. P.I. or bills or bankstatements? I just don't want to lose support because he "says" we live together..Maybe it depends on the judge? Also, why do people keep telling me that I should have gotten more than 5 years of spousal on a long term marriage? Would that come into play with him wanting a reduction, as well as myself doing what is needed to make improvements even with a child that has medical need...

If your boyfriend is there 90% of the time then you ARE technically co-habitating. Your son knows this and dad could probably get evidence fairly easily. That is the bottom line.