Cohabitating

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Cohabitating

Unread postby RonSwanson » Tue Jan 09, 2018 8:48 am

Hi all,

My ex's BF has moved in with her because they're expecting a child. To modify SS, do I contact her first to see if we can make an agreement outside of court, or should I just file an RFO asking to terminate/decrease without chatting with her first. We have a fairly reasonable co-parent relationship at this point, and don't want to mess that up unless necessary. In CA. TIA
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Re: Cohabitating

Unread postby massdad1234 » Tue Jan 09, 2018 9:11 am

how long do you have on spousal support per court order?
Why do you think her moving in with boyfriend would signal an end to spousal support?

It seems like things are going well, communicadtion wise with the ex, is this worth disrupting?
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Re: Cohabitating

Unread postby Fatheroffour » Tue Jan 09, 2018 9:30 am

Cohabiting has a specific legal definition. Can you meet the burden of your state to prove it is the question.
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Re: Cohabitating

Unread postby RonSwanson » Tue Jan 09, 2018 9:54 am

SS ends on December 2020. California Family Code Section 4323 reads, in part, " (a) (1) 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 cohabiting with a nonmarital partner. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support..." The proof is that she's pregnant with his child.

For $500+ a month, I'd be willing to risk disrupting the co-parenting relationship. Is this reasonable?
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Re: Cohabitating

Unread postby LovingDadof2 » Tue Jan 09, 2018 10:02 am

RonSwanson wrote:The proof is that she's pregnant with his child.
This doesn't prove cohabitation. What else you got?
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Re: Cohabitating

Unread postby steelmark » Tue Jan 09, 2018 10:04 am

This may not be the slam dunk you think it is, the burden of proof & statutes will vary.

Hopefully some guys from CA with experience in ending SS with cohabitation can chime in.

I have a cohabitation clause in my own decree, my lawyer told me it’s tough to prove, “in kind” income would need to be proven and it’s easy for the cohabitating couple to work around the system.

I’m not sure I’ve read any successful elimination of SS due to cohabitation in the few years I’ve been on this board. Remarriage is black and white, cohabitation isn’t.

How close to the end of SS are you? Cost/benefit time, proving it won’t be free, and you still could lose.
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Re: Cohabitating

Unread postby Fatheroffour » Tue Jan 09, 2018 10:18 am

Surprisingly, even marriage isn't black and white, depending on the state.
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Re: Cohabitating

Unread postby nr552 » Tue Jan 09, 2018 10:29 am

RonSwanson wrote:Hi all,

My ex's BF has moved in with her because they're expecting a child. To modify SS, do I contact her first to see if we can make an agreement outside of court, or should I just file an RFO asking to terminate/decrease without chatting with her first. We have a fairly reasonable co-parent relationship at this point, and don't want to mess that up unless necessary. In CA. TIA


I have been through this (in CA). She's getting SS from you, there's no way that she'll come to an "agreement" until you put something to paper and file it with the court (RFO- Change of circumstances, SS modification (downward). Like fishing you don't want to pull the hook too soon though.

How long has the guy been moved in? The minimum time I would wait would be 6 months. Why? Well in that period of time they will have co-mingled a lot of their financials, etc. making it more difficult for him to "bounce out" of the house when your EX gets served with court paperwork.

Being pregnant does not constitute cohabitation though-- the guy can be the father of the kid(s) and not live with the mother. You could argue the fact that it's not your responsibility to support your pregnant ex wife and her new child(ren), and that burden is the responsibility of the father of said child(ren). <-- something along those lines.

Do they have social media? -- > Professing their relationship anywhere you can document?

Potentially, after you request the support terminated (make sure you make it NON-MODIFIABLE from that point) through the court, you might get lucky and your ex will not fight it -- and it would be a simple appear before the judge (both of you) with signed agreement; just makes it an order, done deal.

If she agrees outright, offer to throw her a baby shower ;)
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Re: Cohabitating

Unread postby nr552 » Tue Jan 09, 2018 11:15 am

steelmark wrote:This may not be the slam dunk you think it is, the burden of proof & statutes will vary.

Hopefully some guys from CA with experience in ending SS with cohabitation can chime in.

I have a cohabitation clause in my own decree, my lawyer told me it’s tough to prove, “in kind” income would need to be proven and it’s easy for the cohabitating couple to work around the system.

I’m not sure I’ve read any successful elimination of SS due to cohabitation in the few years I’ve been on this board. Remarriage is black and white, cohabitation isn’t.

How close to the end of SS are you? Cost/benefit time, proving it won’t be free, and you still could lose.


Took me 3 years to get mine reduced to zero by agreement (I had my ex by the b$lls with her FB status, a vehicle in both of their names that Mr. W. was paying for, her cell phone was in his name, co-mingled finances). My ex was living. with Mr. W. and his parents from the start of our divorce-- I tried to jump the gun and state "they live together, I want my temp ss order terminated due to cohabitation" to which both she and Mr. W. stated that she paid for her own stuff, he did not contribute, and that she was paying rent to his parents starting that month, etc. My attorney said I didn't have enough to fight that (it was too soon).

When I went back for it @ 3 years due to the truck, FB, phone, etc. My ex's new attorney, female, said to my face before the hearing "Well, you entered into the MSA KNOWING my client was cohabitating, and still signed the MSA. SO, there's no change of circumstances." -- I thought about it for a minute, figuring I was screwed, but pulled a Jim Carrey from "Liar Liar"... and said the following "I was not aware that my exwife and Mr. xxxxxx were cohabitating when I signed the MSA, as both gave sworn declarations to the court stating that he did not pay her bills, and that she was merely a roommate, having to pay his parents $500 a month to rent the room in which she was sleeping in. Based upon your statements, she apparently WAS cohabitating; which means both she and Mr. xxxxxx committed perjury by stating that they were not cohabitating, which I believe is a felony. So unless you can produce proof of her paying $500 a rent, to whom, over the last 36 months, I am going to request the judge review this matter. Or you can agree to terminating spousal support." --- we agreed to reduce it to $zero (was their counter offer, and I took it). -- 2 years later during another hearing for a custody modification, I requested that $zero become perm, non-modifiable.

Done deal.
Last edited by nr552 on Tue Jan 09, 2018 11:49 am, edited 1 time in total.
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Re: Cohabitating

Unread postby Trevor » Tue Jan 09, 2018 11:17 am

Well played.
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