If you are receiving spousal support, and you begin cohabiting with another adult, (it used to be ‘another adult of the opposite sex’, but the law was revised in 2014) the support payor can ask the court to adjust (or eliminate) the spousal support. Family Code section 4323 states “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…Holding oneself out to be the spouse of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.”
Note that this provision does not automatically result in termination of support once cohabitation is established. It is actually a specific application of the ‘material change of circumstances’ rule: once a permanent support order has been made, it may not be modified except upon a showing of a material change in circumstances. The change in circumstances could be anything that affects the financial status of either party: increase or decrease in income, receipt of an inheritance, winning the lottery, losing a job. Once the judge decides that there has been a change, then support can be modified, based upon the current circumstances of the parties. This provision simply establishes cohabitation as a material change of circumstances; it is still up to the court to evaluate the need for support and the ability to pay.
Section 4323 was enacted because the California Legislature was concerned that a supported ex-spouse might elect to cohabit rather than marry, simply to preserve the entitlement to spousal support; by shifting the burden of showing continued need to the cohabiting spouse, the profitability of that tactic is reduced. Cohabitation may reduce the need for spousal support because sharing a household gives rise to economies of scale. Also, more importantly, the cohabitant’s income may be available to the obligee spouse. Note, however, that it is not reciprocal: there is no presumption of increased ability to pay if the support payor begins cohabiting with a non-marital partner. Since about 80% of support payors are male, section 4323 benefits ex-husbands more than ex-wives: they can cohabit without being concerned about the court applying a presumption of increased ability to pay.
Simply living together is not enough to invoke the presumption of decreased need; the supporting spouse must make a prima facie case of cohabitation. The effect of the §4323 presumption is to shift the burden of showing continuing need to the supported spouse. However, until cohabitation is proven, the burden never shifts and responsibility for showing a material change of circumstances rests with the support payor.
But exactly what does ‘cohabitation mean?
Cohabitation has been defined as the mutual assumption of marital rights, duties and obligations that are usually manifested by married people, including but not necessarily dependent upon sexual relations. A boarding house or landlord-tenant relationship is not cohabitation. While cohabitation normally involves a meretricious relationship, a couple living together in a platonic relationship who are merely sharing a house and expenses could conceivably have a sufficient relationship to raise the presumption of decreased need for support.
Cohabitation is an objective test; the intent of the parties does not matter. What matters is what they did. The motives and subjective goals of the cohabitants can be as venal and deceptive as one chooses, but cohabitation depends upon conduct, not subjective intent. In this respect, ‘cohabitation’ is much like ‘date of separation’: both require the court to evaluate the conduct of the parties and determine whether that conduct, as a matter of law, results in a change of status. Some evidence of the nature of the relationship is required because only then can the trial court determine whether cohabitation exists. While most of the various definitions include, as one of the factors, whether the parties are sexually intimate, none of them require it and none of them make it the sole (nor even the most important) consideration. A relationship of ‘amorous intimacy’’ short of sex might be sufficient. A relationship of homemaker-companion might suffice. An emotionally close but nevertheless platonic relationship involving sharing of expenses might be adequate. It is precisely because the determination of ‘cohabitation’ is so context-specific that some evidence of the personal nature of the relationship is required before cohabitation can be shown. While sexual orientation may bear on the issue of ‘sexual or amorous intimacy’, the application of Fam. Code §4323(a) does not require (nor preclude) any specific personal sexual preference.
As you can see, there is no hard and fast rule for what constitutes cohabitation. You don’t have to hold yourself out to be husband and wife; you don’t have to change your address and phone number. All you have to do is spend enough time in a shared residence that an objective third party might look at you and think ‘It sure looks like they are cohabiting.’ If you are receiving spousal support and you are contemplating moving in with your significant other, you absolutely must talk to a family law attorney before you make that change; it could cost you thousands of dollars if you don’t. If you are paying spousal support, keep an eye on whose car is parked in front of your ex’s house (but no stalking!); it could save you thousands of dollars.