One of the ways spousal support can be reduced in California after a divorce is to show that the recipient former spouse is “cohabitating” with someone else.  Specifically, Family Code section 4323, subd. (a)(1) states that “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”.

Recently, The Court of Appeal relied on the cohabitation statute to uphold a San Diego family law court’s decision to reduce a spousal support order from $4,000.00 a month to zero.  In that case, entitled Marriage of Cosby, a unanimous panel of three justices held that “[t]here is clearly substantial evidence that Donna (the ex-wife) was, as of the time of (former husband) Bruce’s motion, cohabitating with (boyfriend) Todd.  In fact, there was evidence, in Donna’s Income and Expense Declaration and Todd’s declaration, demonstrating that Donna and Todd live together, that they share the cost of rent of their home, and that Todd pays all utilities related to their shared home”.

In Cosby, the parties got their divorce in early May, 2010.  Four years later, the former husband filed a request for order (“RFO”) to lower spousal support.  The evidence was the ex-wife and the boyfriend had gone through a commitment ceremony in 2013 and that the former wife had informed the former husband in 2013 that she had moved into a home in Oceanside, California owned by the new boyfriend. The former wife admitted that she lived with Todd and that they were “in a committed relationship”.  The boyfriend (Todd) stated that he and his girlfriend were sharing the rent.

There was some evidence that the former wife did not make a lot of money, but she had been warned earlier in the case to look for a job and the court stated it would be inequitable to continue spousal support when the woman clearly had moved on with her life, including engaging (no pun intended) in a “Facebook” marriage.

The cohabitation statute is important because reducing spousal support after a long term marriage, which usually means a marriage of over ten years, is difficult in California.  Specifically, the payor former spouse has to show a material change of circumstances since the last time the court made a spousal support order.  And in the Cosby case, the marriage was indeed one of long duration, as the couple had been married over 25 years before they separated and got divorced.

Proving a substantial change in circumstances is difficult, unless someone gets a pay raise or a pay cut.  Even the cohabitation statute is difficult to apply.  In other words, it is not enough to show that the recipient spouse is dating someone.  Nor is it enough to show that he or she has a roommate with whom there is nothing more than a platonic relationship.  (Note, however, that if the recipient spouse has a roommate, an argument can be made that the lowering of expenses is, in itself, a change of circumstances.)

Therefore, for the cohabitation argument to work, the paying former spouse must show both a dating relationship of some kind and the fact that the new couple is, in fact, living together.  Where the cohabitation argument gets traction is when there is evidence that the couple have shared bank accounts or are both on the tile to property or a rental agreement.  Obviously, if the couple is engaged to be married, the cohabitation argument might work.  Or, if the couple has had a child together, it would be hard to see how the cohabitation argument would not work.  In Cosby, it seems like the couple admitted a romantic relationship and the fact that they were living together.

But, in spite of Cosby, I do not think it is enough, even if both a dating relationship and living together are shown.  If the “new mate”, as we family law professionals like to call the new significant other, is dirt poor, there still may be a great need for spousal support.  As they say, it all depends on the facts of each case.

Spousal support, also known as alimony, is tax deductible to the payor and taxable to the recipient.  (This is different from child support.)  Absent some sort of written agreement filed with the court, spousal support automatically ends if the recipient and her or his significant other actually get married and do not just cohabitate and/or go through some sort of commitment ceremony.

The Cosby decision was written by Justice Cynthia Aaron, who was joined by Presiding Justice Judith McConnell and Justice Alex McDonald.  The trial judge was Commissioner Patti Ratekin.

The Cosby decision cannot be cited for precedent by lawyers arguing future cases in family courts, because it has not, at least yet, been certified for publication.  It might not ever be.  But it does make for an interesting read.