Cohabitating

Your divorce and child custody agreements are final, get practical tips for moving on with your life after divorce.

Re: Cohabitating

Unread postby dad2grls » Tue Jan 09, 2018 2:05 pm

gabby wrote:I called my attorney about what happened and had her get a consent order ready to end support and to adjust the child support figures. Everything but the date, I was going to wait, it was only September, so I planned on waiting until after Christmas, let them get comfy and all family like. I didn't want to kick up the dust as the first round hadn't settled yet. After the first of the year, I pulled the trigger. NJ called me when she got the order, I told her I had her dead to rights, and I know she couldn't afford to go to court.


This is how you do it. Should be required reading or something.

Post divorce my exwife was done with courts and attorneys, she'd do anything to stay out of court, she realized rather belatedly that her attorneys were of no help and cost her big time.

There were several issues that came up post divorce regarding my youngest daughter and each and every time I had my attorney draw up the Stipulation and she signed it, usually without question.

This strategy tends to work best when your adversary has had enough of attorneys and the court system and/or doesn't have the money to fight it. If they're still of the mindset that running to their attorney is the best course of action then it's not going to be so easy.
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Re: Cohabitating

Unread postby dad2grls » Tue Jan 09, 2018 2:07 pm

RonSwanson wrote:
gabby wrote:I called my attorney about what happened and had her get a consent order ready to end support and to adjust the child support figures..


Do you have to have an attorney do the consent order, or could I just file an RFO?


Technically you could do your entire divorce without an attorney. A defendent accused of first degree murder can represent himself too, it's happened before.

So can you do it? Yes.

Is it a good idea? NO.

Spend a few hundred bucks to be sure it's done correctly.
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Re: Cohabitating

Unread postby gabby » Tue Jan 09, 2018 2:34 pm

RonSwanson wrote:
gabby wrote:I called my attorney about what happened and had her get a consent order ready to end support and to adjust the child support figures..


Do you have to have an attorney do the consent order, or could I just file an RFO?


Sure, you can file anything yourself, but I don't recommend it. Too much at stake when dealing with the courts, so I always used my attorney.
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Re: Cohabitating

Unread postby gabby » Tue Jan 09, 2018 2:58 pm

dad2grls wrote:
gabby wrote:I called my attorney about what happened and had her get a consent order ready to end support and to adjust the child support figures. Everything but the date, I was going to wait, it was only September, so I planned on waiting until after Christmas, let them get comfy and all family like. I didn't want to kick up the dust as the first round hadn't settled yet. After the first of the year, I pulled the trigger. NJ called me when she got the order, I told her I had her dead to rights, and I know she couldn't afford to go to court.


This is how you do it. Should be required reading or something.

Post divorce my exwife was done with courts and attorneys, she'd do anything to stay out of court, she realized rather belatedly that her attorneys were of no help and cost her big time.

There were several issues that came up post divorce regarding my youngest daughter and each and every time I had my attorney draw up the Stipulation and she signed it, usually without question.

This strategy tends to work best when your adversary has had enough of attorneys and the court system and/or doesn't have the money to fight it. If they're still of the mindset that running to their attorney is the best course of action then it's not going to be so easy.


This.

I could have fought NJ over several things over the years, but I chose to eat it. I only went after her when I had her backed into a corner and she knew it. Terminating alimony, CS mod and emancipation of my oldest son, CS mod when she finally got a job, all done by consent order. The only time she balked is when I went for custody of my youngest son, so that one went to court. I had that one in the bag as well, she knew it, but was mad that she would have to pay me child support. I won that one too. She denied me her financials until the day before court so things got bad for her. I didn't get court fees, but the judge did make it retro to the filing date. NJ was six months in arrears when she walked out of the court house.

Pick your battles, use an attorney, and keep your mouth shut.
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Re: Cohabitating

Unread postby TJinCA » Tue Jan 09, 2018 3:23 pm

If you think she's inclined to deny cohabitation then you probably will need some kind of documentation to convince the judge that they are cohabitating. Pregnancy won't be enough and your assertions that you "know" probably won't be enough. Something with his name and their shared address (like a utility bill or drivers license) would do very well. At the extreme, a PI could probably gather enough evidence. Social media, testimony of neighbors, etc. - maybe, probably depends on the judge.

"Rebuttable presumption" in the CA Family Code means that if the judge is persuaded that she's cohabitating, the court will presume that her need for support is reduced and so spousal support will be reduced. The burden would be on her to persuade the judge that even though she's cohabitating her expenses are not reduced. My understanding is that in CA courts the typical cohabitation reduction is about 50%.

Keep in mind that although cohabitation is a change of circumstance, ending cohabitation is also a change of circumstance. So it's possible that at some point you could get an RFO saying "My boyfriend broke up with me, I need my full SS reinstated." Which sucks, but that's how it works.
Last edited by TJinCA on Tue Jan 09, 2018 4:14 pm, edited 1 time in total.
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Re: Cohabitating

Unread postby gabby » Tue Jan 09, 2018 3:48 pm

TJinCA wrote:Keep in mind that although cohabitation is a change of circumstance, ending cohabitation is also a change of circumstance. So it's possible that at some point you could get an RFO saying "My boyfriend broke up with me, I need my full SS reinstated." Which sucks, but that's how it works.


The coming back to get you can be a problem. My attorney told me that I wasn't completely in the clear until the duration period was met. My alimony ended, but she could still come after me down the road. It's very important to be specific about when alimony ends. Open ended duration, such as four years, can be argued that NJ was entitled to four, but only got three. Mine was spelled out with an actual date.
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Re: Cohabitating

Unread postby nr552 » Tue Jan 09, 2018 3:51 pm

TJinCA wrote:...
"Rebuttable presumption" in the CA Family Code means that if the judge is persuaded that she's cohabitating, the court will presume that her need for support is reduced and so spousal support will be reduced. The burden would be on her to persuade the judge that even though she's cohabitating her expenses are not reduced. My understanding is that in CA courts the typical cohabitation reduction is about 50%.

Keep in mind that although cohabitation is a change of circumstance, ending cohabitation is also a change of circumstance. So it's possible that at some point you could get an RFO saying "My boyfriend broke up with me, I need my full SS reinstated." Which sucks, but that's how it works.


Whoa.. hold on. Cohabitation, when proved/shown, is as if she were to remarry, which is grounds for ending SS. She won't be able to get it "turned back on" without some major magic in the court room, especially if you get it changed to "non-modifiable" with the termination of support. I believe he'll have a good case once he builds one with Baby Daddy #2 in the picture for 6 months+.

"Your honor, she is now carrying the child or "had a child with.." (depending on when it happens) "..another man, who she cohabitates with, who supports her and their new little love beast." ---

There's no 50%, unless it's a temporary step down... but that too is rare.

Talk to an attorney in your area, work the numbers -- Dec 2020 = $17500 over the next 35 months. Let it run for 6, that's $3k... then file, spend another $3k in attorney fees (maybe less...)-- if you win you save $11500... if you lose, well, you lose $3k ...
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Re: Cohabitating

Unread postby nr552 » Tue Jan 09, 2018 3:52 pm

gabby wrote:
TJinCA wrote:Keep in mind that although cohabitation is a change of circumstance, ending cohabitation is also a change of circumstance. So it's possible that at some point you could get an RFO saying "My boyfriend broke up with me, I need my full SS reinstated." Which sucks, but that's how it works.


The coming back to get you can be a problem. My attorney told me that I wasn't completely in the clear until the duration period was met. My alimony ended, but she could still come after me down the road. It's very important to be specific about when alimony ends. Open ended duration, such as four years, can be argued that NJ was entitled to four, but only got three. Mine was spelled out with an actual date.


If had it changed to non-modifiable, you should have been in the clear from that moment further. I am.
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Re: Cohabitating

Unread postby TJinCA » Tue Jan 09, 2018 4:28 pm

nr552 wrote:
Whoa.. hold on. Cohabitation, when proved/shown, is as if she were to remarry, which is grounds for ending SS. She won't be able to get it "turned back on" without some major magic in the court room, especially if you get it changed to "non-modifiable" with the termination of support. I believe he'll have a good case once he builds one with Baby Daddy #2 in the picture for 6 months+.


Nope. Marriage is marriage and cohabitation is...not.

Under FC 4337 remarriage of the supported spouse terminates spousal support (meaning that both support and the court's jurisdiction is ended - the court no longer has discretion to order support between the parties). This is normally spelled out in the SS order ("effective until death of either party, remarriage of the supported party or further order of the court") but even if it's not I believe FC 4337 still takes effect. But only if the supported party is officially, legally married to a new partner.

Cohabitation is addressed in FC 4323 which allows the court to modify spousal support based on a change of circumstance (cohabitation). I tells the court that it should assume that cohabitation represents a change of circumstance that merits a modification, unless the supported party can demonstrate otherwise. But the court would normally retain jurisdiction to further modify spousal support in the future based on other changes of circumstance. If cohabitation is change then ending cohabitation is also a change, so all she'd need is an RFO and an updated Income & Expense declaration. Unless you manage to get the original reduction non-modifiable, and why on earth would she agree to that? And I doubt that a judge would give up jurisdiction unless both parties agreed.

"Your honor, she is now carrying the child or "had a child with.." (depending on when it happens) "..another man, who she cohabitates with, who supports her and their new little love beast." ---


The "carrying the child" part is mostly irrelevant, but demonstrating cohabitation and that the daddy is providing support for the mom (and not just the child) is.

Ideally, I'd try to make a deal that will a) keep this out of court; b) hopefully result in some decrease in spousal support, but you need to offer enough that she'll be better off than losing 50% in court; and c) will not discourage them from cohabitating openly, and hopefully leading to marriage sooner rather than later.
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Re: Cohabitating

Unread postby TJinCA » Tue Jan 09, 2018 4:45 pm

gabby wrote:The coming back to get you can be a problem. My attorney told me that I wasn't completely in the clear until the duration period was met. My alimony ended, but she could still come after me down the road. It's very important to be specific about when alimony ends. Open ended duration, such as four years, can be argued that NJ was entitled to four, but only got three. Mine was spelled out with an actual date.


Yeah, it's important to understand the difference between "reduction to zero" (where the court reserves jurisdiction to make further modifications) and "termination" (where the court ends support and gives up jurisdiction)
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