Cohabitation and Spousal Support
In many states, spousal support is typically terminated upon the receiving party remarrying or upon death. In several states cohabitation by the receiving party is also grounds for termination or modification of support, but not without a burden of proof by the payor to demonstrate that there is sharing of living expenses between the recipient and his/her romantic nonmarital partner.
In California, if cohabitation is suspected, the payor of alimony may request a modification or termination of support. There is a rebuttable presumption affecting the burden of proof that there is a decreased need for spousal support.
California Family Code uses the words nonmarital partner because it requires an interpersonal relationship like that of a romantic relationship. If two people are simply living together as roommates, but that nonmarital partnership does not exist, this code section may not apply. A modification or termination would not be justified. It is unclear what defines a nonmarital partner, but it has typically been applied to mean a nonplatonic, romantic relationship.
The court can look at a wide spectrum of evidence in making a determination of cohabitation, such as whether the living partners are dating, whether they share bank accounts or share titled on property, etc.
Being in a platonic relationship does not preclude the possibility that a roommate relationship may also trigger a modification request. The roommate may be considered a significant circumstance reducing the expenses that the ex-spouse pays.
How do you prove cohabitation?
In California there are several ways to prove cohabitation:
1. The simplest way is to have the other person admit it under penalty of perjury.
2. Often, attorneys subpoena the other person in the relationship and depose them. Often the truth is revealed since the person is being deposed under oath.
3. Payors may also hire a private investigator which, though expensive, may be a definitive way to prove cohabitation.
4. Through the discovery process of litigation, by requesting utilities bills, lease contracts, mortgage statements, and other documentary evidence the payor may have enough evidence to show that the two are intertwined financially and living together.
5. Finally, there are witnesses that can prove cohabitation to prove the nature and extent of the relationship
Once a party shows cohabitation with the nonmarital partner, they can delve into the reduced need for support if the documentation substantiates shared living expenses. The reduced need may be significantly fewer personal expenses and/or the pooling of money between the nonmarital partners.
In New Jersey, for example, the court will consider the following:
· Intertwined finances such as joint bank accounts or other joint holdings or liabilities
· Sharing or joint responsibility for living expenses
· Recognition of the relationship in the couple’s social and family circle
· Living together, the frequency of contact, the duration of the relationship, and other evidence of mutually supportive intimate personal relationship
· Sharing household chores
Keep in mind that if there is a real cohabitation with a non-marital partner, it is not a guarantee of a reduction or termination of spousal support. The cohabitating spouse may be able to show that he or she does not have a reduced need of support.
Moreover, the paying spouse can never unilaterally stop or reduce payment on spousal support under a court order and can only do so after receiving a modification or termination from the California courts.
A technical issue may be that the cohabitation did not start after the spousal support order, but rather before. If so, then there was not a significant change of circumstance since the spousal support order and so the motion for reduction or termination of support may not relevant.
Note: This article is for informational purposes only and is not intended to provide either tax or legal advice. Please contact your attorney or accountant and rely on their independent research and advice for these matters.
