Terminate spousal support question

[nr552]

If your former spouse is in a romantic relationship and cohabitating with that person, that may be enough to seek a decrease in your alimony payments.

"Seeking a decrease" and "meeting the burden of proof" are two polar ends of a rocky road. I reiterate that proving the X shares a residence with Raul the Pool Boy and convincing a judge to terminate cash flow to a mother are vastly different propositions. What documentation exists, in hand, today? What is your lawyer's strategy for exceeding the burden of proof?

As of now, I am going into this pro se, the legal advice I obtained was fairly simple. She lives with her boyfriend, admits to it. In CA. I don't have to go beyond that... She claimed in court declaration that she would have to pay $500 a month in rent... that has never happened. If it came to it, I'd have a discovery for her bank statements, have proof of payment, to who, when, etc. All of that would show she didn't pay any rent, and that he provided it. She makes our son call her boyfriend's parents "Grandma and Grandpa"... The burden of proof is on her to deny that she is cohabitating... Again, this is CA.... also, she has done NOTHING to further herself financially or career wise. That too is a grounds for reduction or termination according to a few lawyers I have discussed this with.

Basically she got fired from her job over 2 YEARS ago, lives with said boyfriend and his parents...

[Trevor]

She lives with her boyfriend, admits to it...I don't have to go beyond that...

You'd better make certain that last part is true. I hate to sound like a broken record, but seriously, depending on that flimsy premise seems like a dangerous non-strategy to me. I have never heard of someone having an easy time shutting off alimony without a copy of a marrage certificate in hand. Be sure to let us know how it turns out if you really plan on walking into court, saying this, and expecting the judge to agree with you.

The burden of proof is on her to deny that she is cohabitating...

No it's not. You are the one asserting termination of alimony, so the onus is clearly upon you to prove your case. Where are you getting your "legal" advice anyway? Are these divorce lawyers or ambulance chasers whose advice you're following?

she has done NOTHING to further herself financially or career wise. That too is a grounds for reduction or termination according to a few lawyers I have discussed this with.

If she argues that she is looking for work every week but hasn't found a job locally, how do you propose to document this point you're making?

[Fatheroffour]

Seems like the most obvious strategy for her would be to enter into court unencumbered by the BF. i.e. "We broke up, I moved two weeks ago."

I wonder how that would play in court.

[BartSimpson]

She lives with the parents in his home?

She lives in the parents home with him?

The parents sure do cloud the issue, and likely play a role in her defense.

[nr552]

Seems like the most obvious strategy for her would be to enter into court unencumbered by the BF. i.e. "We broke up, I moved two weeks ago."

I wonder how that would play in court.

Well, thought of that... but from everything that I have looked into... I am able to show (have evidence to support it as well) that she has lived with her boyfriend for 2 years now. The spousal support is modifiable (for both of us)... And I received a notice from her attorney on Friday that he has withdrawn as her attorney (I believe he was hired by her father to do the QDRO, and that is now done/finished...so it makes sense this guy would withdrawl).

I was hoping someone from CA. that has dealt with cohabitation resulting in a reduction/termination of spousal support... how involved was it. In my case, based on what I have researched (Case law, etc)... I should be able at a minimum to get it reduced, but I will be requesting it be terminated. She has not paid any of the childcare since we originall separated, zero towards the shared marital debt, zero towards co-pays/medical, etc. Hopefully a judge will see the pattern here.

[nr552]

She lives with the parents in his home?

She lives in the parents home with him?

The parents sure do cloud the issue, and likely play a role in her defense.

She moved in with her boyfriend (he lives with his parents) 2 years ago August. It was suppose to be "temporary"... it was also listed that she was to pay $500 a month rent to boyfriends parents starting 11-1-2010... But that has never happened. They are boyfriend/girlfriend, live under the same roof. Her court documents list her address (same as his address). Shared bank account, she is on his cellphone plan, etc.

From what I have been told (now 3 attorney's in my area that represent people in the Family Court that my case is filed) that I have a good chance on getting it terminated, and that the judge should to be able to see through any shannigans that she could claim that she is not cohabitating (including moving out of the guys place after I file a motion to terminate suppport).

[BartSimpson]

She lives with his parents, therefore she is renting a room in a boarding house under the law, California Civil Code Section 1954?, and certainly by the California Department of Consumer Affairs definitions. That her boyfriend is also renting a room does not present the cohabitation issue.

By your definition, staying in a hotel together would be cohabitation.

I don't know how your explainations with attorneys went, but if you have ever owned residential rentals in the State of California, this is basic Landlord 101.

[nr552]

She lives with his parents, therefore she is renting a room in a boarding house under the law, California Civil Code Section 1954?, and certainly by the California Department of Consumer Affairs definitions. That her boyfriend is also renting a room does not present the cohabitation issue.

By your definition, staying in a hotel together would be cohabitation.

I don't know how your explainations with attorneys went, but if you have ever owned residential rentals in the State of California, this is basic Landlord 101.

I understand that situation, and explained it as such with the attorneys I have consulted with. There's more to it that just shacking up in the same bed--- they live together as a family 'unit' where neither she nor her boyfriend pay any rent. She make S11 refer to NJ's BF's parents are "grandma and grandpa".

I found this --

"Presumptive decreased need for support on account of opposite-sex cohabitation:
Unless the parties have "otherwise agreed" in writing, the supported party's cohabitation with a person of the opposite sex gives rise to a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support. [Ca Fam § 4323(a)(1)]

In other words, the obligee's opposite-sex cohabitation is a presumptive material change of circumstances justifying a spousal support reduction "because sharing a household gives rise to economies of scale . . . [and], more importantly, the cohabitant's income may be available to the obligee spouse." [Marriage of Bower (2002) 96 Cal.App.4th 893, 899, 117 Cal.Rptr.2d 520, 525]

Thus, pursuant to § 4323(a)(1), the obligor will prevail on a request to terminate or reduce spousal support upon proof the supported party is living with a person of the opposite sex . . . unless the parties agreed in writing this occurrence would not be a basis for modification or the obligee rebuts the presumption by sufficient proof the cohabitation has not affected his or her need for support. [See Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 238 Cal.Rptr. 12--court erred in failing to reduce support for ex-wife who had commenced nonmarital cohabitation]

Triggering "cohabitation":
An obligor seeking a spousal support reduction or termination need simply show the obligee is now "cohabiting with a person of the opposite sex." A "Marvin-type" nonmarital cohabitation relationship is not required: "Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision." [Ca Fam § 4323(a)(2)]

"Boarding arrangement" not enough:
However, the statute contemplates more than a simple roommate or "boarding arrangement." There must be a showing of a sexual, romantic or at least a "homemaker-companion" relationship. [See Marriage of Thweatt (1979) 96 Cal.App.3d 530, 157 Cal.Rptr. 826; Marriage of Regnery (1989) 214 Cal.App.3d 1367, 263 Cal.Rptr. 243--§ 4323(a) presumption inapplicable where alleged cohabitant shown to be renting "tenant"; compare Marriage of Bower, supra, 96 Cal.App.4th at 900-901, 117 Cal.Rptr.2d at 525-526--parties' relationship changed from mere "room-mates" to "cohabitation," triggering § 4323 (a)(1) presumption]

By the same token, a boarding or other cohabitation relationship that is not sufficient to trigger the statutory presumption might still amount to a factual change of circumstances warranting a support decrease--as where the supported party's living expenses are partially offset by rent received from a tenant. The obligor may still prevail on a support decrease request, although without the aid of the statutory presumption. [See Ca Fam § 4323(c)--"Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances"] "


Thoughts? -- keep 'em coming, I really appreciate the feedback (both good and bad)... I am a good father, I am the one that provides for S11, and he's with my 50% of the time... that will be my next hurdle to get more time-- as I am the one who pushes him to do his school work, and I am the one to encourage/support his school work (she does not).

[nr552]

**Updated info**

I am still gathering all of my info so I can put together a solid "motion" to have spousal support terminated.

Something has come up that I wanted to bounce off the people who've been there before. I was informed by S11 that he was told to address NJ's BF's parents as "grandpa" and "grandma". Being they aren't married (though through information that was passed to me, she is intending on marrying the guy), I find this somewhat confusing for our S11, and it helps solidify the notion that she is acting as a "family unit" within this guy's world.

Other things that I have accomplished over the last two weeks--- was able to get the teacher I requested for S11 (school starts next week), and I turned in an accurately filed out request for student free/reduced price lunches that will be turned down (as I have a job). NJ has been fraudulantly filing out the requests the last two years listing (no income for the household) so she won't have to pay $16 a week for S11's lunch (that really chaps my hide). I can afford it, she should be able to afford it and not steal/play the system. Since it'll get rejected this time (one application per student, per school year).

I keep getting calls from the food stamps people wanting to garnish my wages as she's on the food-stamps/welfare train again... I told them I pay child support (and spousal-- for now) through the state, and that if she isn't reporting that she's getting paid that maybe they can figure out who's paying what, because I've filed a fraud case for that... Sucks when people just want to ride the coat tails of everyone else because the state allows it to happen.