The impact of living with the opposite sex while receiving spousal support

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Because a divorce proceeding can take anywhere from six months to many years, some spouses will start dating while the process is still pending. In some cases, the dating spouses will ask if they can move in with their new dating partner and how such move will impact the divorce case.  California law provides that there is a rebuttable presumption that the spouse receiving spousal support does not need financial support when he or she is living with a member of the opposite sex.  Section 4323 of the Family Law Codes provides as follows:

“(a)(1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, effecting the burden of proof, of decreased need for spousal support if the supporting party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support…”

A rebuttable presumption means that the court is entitled to assume as true that the need of the supported spouse has decreased as a result of the cohabitation and therefore  he or she is no longer entitled to spousal support.   However, the supported spouse may provide evidence to rebut this presumption.   The best evidence seems to be those that demonstrate that the supported spouse’s living expenses have not decreased as a result of the cohabitation.  For example, the supported spouse can show that he or she is still paying for rent, utilities and groceries notwithstanding the new living arrangement. Although such evidence is valuable in rebutting the presumption, it is no guarantee if there is also evidence showing that the supported spouse’s needs have decreased in other ways, such as an increase in savings, entertainment or vacations expenses.

****The opinion above is not intended to be legal advice and absolutely does not create any attorney-client relationship between its author and the readers. Please consult an attorney for information or advice specific to your legal issue.****

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