January is a time of new beginnings, including for couples navigating divorces. For separated or divorced individuals, settling into a new relationship can represent the start of an exciting new chapter, but can also have a drastic impact on the finances of both former spouses. If you are currently divorcing, or have already finalized your divorce, here is what you need to know about cohabitating with your new partner:
1. Why It Matters.
According to the California Family Code, “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 cohabitating with a nonmarital partner.” This means that, if Former Spouse A (the spouse receiving support from Former Spouse B) begins cohabitating with a third party, the court will assume – unless Spouse A demonstrates otherwise – that they are in need of less financial support. The only way around this presumption is for the parties to agree in their divorce judgment that a change in the recipient spouse’s cohabitation status will not affect the amount of money he or she receives from the payor spouse. The rationale behind this presumption is that cohabitation reduces the amount of support required as two parties’ incomes are now being used to buy fewer than twice the resources (known as an “economy of scale”), and one party may now have access to the income of another.
2. What It Is.
Here is where things get a little tricky. The concept of cohabitation appears in many different areas of California law, but rarely is it explicitly defined. For example, the state penal code uses a factor test that considers: (1) whether the parties are engaging in sexual activity while living in the same space; (2) whether the parties share the cost of living together; (3) whether the parties share ownership of or jointly use of the same items of property; (4) whether the parties represent themselves as married to society; (5) the continuity of the relationship; and (6) how long the parties have been in a relationship. California criminal cases have also looked to whether the parties “lived together in one bed”, whether the parties demonstrated “sexual or amorous intimacy”, whether they are engaging in “something more than a platonic, rooming-house arrangement”. Criminal law also acknowledges that an individual can simultaneously cohabit two different locations with two different individuals. The evidence code includes cotenants as cohabitants, and does not require that they be married. The family code refers to a cohabitant as “a person who regularly resides in the household”, with no mention of romantic or sexual intimacy.
3. Who It Applies To.
The statutory presumption only applies to the obligee spouse – the former spouse receiving the support (as opposed to paying it). If a payor like Former Spouse B begins living with a third party there may be related circumstances that would result in a change in support, but the statutory presumption would not apply.
4. How Long It Matters For.
The timeline for support (as outlined by statute or by the judgment agreed to by the parties) is the controlling factor in how long support is owed. For example, if the court order specifies that jurisdiction for spousal support terminates after 15 years, Spouse B may not be successful in petitioning the court in year 14 for an extended five years of support on the basis that he or she is no longer cohabitating (and is therefore in need of additional funds).
5. What It Affects.
The cohabitation presumption detailed in the Family Code affects only spousal support (otherwise known as alimony). Child support belongs to the recipient child, not the parent paying it, nor the parent receiving it on the child’s behalf. As such, one cannot contract around it. Child support is the product of a formulaic calculation which considers many different metrics, including: the gross income of both parents; the tax deductions available to each parent; and the amount of time each parent spends with the child. When determining child support, courts generally look at whether the child’s needs are adequately provided for (regardless of which parent the child is with at the time), rather than whether the parents are left on an equal financial footing after taking care of the child’s needs. So long as the child’s needs are being met, the fact that one parent may be benefitting financially from cohabitation with a third party may be immaterial.
6. Is Cohabitation the Only Thing that Impacts Spousal Support?
No – the California Family Code lists a variety of life events which may constitute a material change in circumstances sufficient to modify child support, including deterioration in health and changes in income. Other circumstances, such as remarriage (or registration as a domestic partner) and death ordinarily result in the termination of spousal support. Sharing expenses with a roommate or boarder may also result in an increase of decrease in addition to the presumption arising from cohabitation itself.
Cohabitation is a legal construct that appears in several different areas of California law. In attempting to define it, the California legislature and courts have largely been vague – perhaps for flexibility, and perhaps because defining cohabitation requires courts to distill/delineate what qualities define a relationship. This has resulted in one-off, context-based definitions, and defining cohabitation by what it is not. To help you navigate this potentially-costly area of law, it is imperative to have an attorney who can help you weigh the pros and cons of addressing cohabitation – either in your divorce judgement, or in court after an ex brings a challenge to support. For example, a divorcing couple may want to spell out a specific definition of cohabitation in their judgment – if Spouse A knows what sort of behavior will produce what sort of financial consequences, it may provide clarity and expediency in later court proceedings because the parties may not need to debate whether the behavior at issue constituted cohabitation. Conversely, spelling out specific terms might mean the recipient spouse could behave in a manner just shy of cohabitation and continue receiving full support payments. If the parties keep the cohabitation language in their judgment vague, it may be easier for them to get into court with an argument for reduction, but more difficult for them to prove it once they get there. At the Law Offices of Diana Zitser, we offer our clients access to a team of attorneys with the collective experience to help you determine what impact you or your ex’s cohabitation status has on you.
Bowers v. Hardwick, 478 U.S. 186 (1986)
In re Marriage of Bower (2002) 96 Cal. App. 4th 893
In re Marriage of Minkin (2017) 11 Cal.App.5th 939
In re Marriage of Romero (2002) 99 Cal.App.4th 1436
People v. Hollifield, 205 Cal.App.3d 993
People v. Taylor (2004) 118 Cal.App.4th 11
Cal. Evid. Code §972
Cal. Fam. Code §4320
Cal. Fam. Code §4323(a)
Cal. Fam. Code §6209
Cal. Pen. Code §13700(b)