The Effect of Cohabitation on Spousal Support

If you are paying spousal support to your former spouse and your former spouse starts living with someone of the opposite sex, does that affect your spousal support obligation? The answer is, as with most family law questions, it depends. If you are facing this question and your divorce has been completed, the first and most important place to look to determine what affect cohabitation has on your support obligation, is in your Judgment for Dissolution. If your Dissolution proceeded by way of Stipulated Judgment, support will be terminated or modified as you and your former spouse agreed when you entered into that Stipulated Judgment. Some spouses will agree that spousal support will terminate upon the supported party’s cohabitation with a person of the opposite sex, other parties will agree, for example that spousal support will not be modified at all for any reason for a number of years. It is important to check the terms of your Judgment to determine if and when support may be modified.

If your Judgment is silent on the issue of cohabitation and only states that spousal support will be modified upon further order of the court, or if your divorce is still pending and you have not entered into a final Judgment yet, your former spouse’s cohabitation may result in your support obligation being modified or terminated altogether. Family Code Section 4323 provides that 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 spousal support … The Court presumes the supported party has a reduced need for support because they are, presumably, sharing in expenses, such as rent, utilities, groceries, etc. with the person they are cohabiting with. Keep in mind though, this is a rebuttable presumption, meaning that cohabitation does not automatically modify or terminate support. Various factors could be used to rebut this presumption. For example, if the cohabiting person of the opposite sex were not contributing at all to the rent, utilities, groceries, or other expenses, your former spouse would likely not have any reduced need for support based solely on the fact they are cohabiting.

Therefore, if you believe the supported spouse in your case is cohabiting, you should discuss this issue with your attorney as it may have a great impact on your obligation to pay support. Conversely, if you are receiving spousal support and you are considering cohabiting with someone of the opposite sex, you should first discuss this decision with a family law attorney as it could potentially result in your support being modified downward or terminated altogether.