Here is the situation. Husband and Wife divorce after 20 years of marriage. During the divorce proceedings, Husband is ordered to pay spousal support to Wife. Husband was a very high earner. The Court then enters Judgment ordering Husband to pay Wife spousal support on a permanent basis, meaning until one of them dies, remarries or further court order. Then, wife meets someone new and they begin living together. Husband discovers this and wants to terminate his spousal support obligation. Will he win?
California Family Code Section 4323 provides that when the supported spouse is cohabiting (meaning in a relationship and living with) with a member of the opposite gender, there is a presumption that he/she has a decreased need for the support. So, Husband starts with an automatic advantage here.
There are several factors which Courts must consider when fashioning support orders, one of them is the needs of the supported spouse. This statute only affects one of those factors. The supported spouse then must produce evidence which rebuts the presumption, namely demonstrating that her needs have not changed. Perhaps the significant other is not contributing financially if at all to the new household. Maybe his income is very low and the supporting spouse's income is very high. The supported spouse has the burden to demonstrate that his/her needs are the same or greater notwithstanding the cohabitation.
Courts have wide discretion here. What that means is that you need to gather and present your evidence on this issue effectively. The Court can terminate support, reduce it, or leave the order alone. It depends on the facts and circumstances. So, the answer the question which forms the title of this blog post is "It depends." If answers to questions like this were so cut and dry, people would not need divorce and family law attorneys.