Other Factors for Modification of Spousal Support

When reviewing spousal support modification requests, the court must also consider such additional factors as: the ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in his or her custody; the age and health of the parties; and any other factors that the court considers just and equitable. This final "catch-all" factor confirms the court's authority to consider other non-codified factors that are relevant to modification requests.

Some of these additional factors include:

Remarriage

Unless the parties otherwise agreed in writing, a spousal support order automatically terminates upon the supported party's remarriage.

Cohabitation

Cohabitation may also be a basis for seeking a modification of spousal support. California Family Code section 4323 provides that “there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex…"

It is not required that the supported party and the other person hold themselves out to be husband and wife. However, this statute requires more than a simple roommate or boarding house arrangement. There must be evidence of a true sexual relationship, a romantic involvement, or at least a "homemaker-companion" relationship.

If your former spouse is cohabitating with a member of the opposite sex in this type of relationship, we can request that the court order a termination of support, or, in the alternative, a downward modification of support.

If the court finds that cohabitation exists, the burden will then shift to your former spouse to prove that, despite the relationship, his or her need for support has not diminished.

Retirement

Some recent appellate decisions have held that there is an absolute right for a supporting spouse to retire at age 65. The supporting party's retirement may therefore be a sufficient basis to warrant a termination of support.

However, in cases where the supporting spouse elects to take an early retirement and his or her ability, and the opportunity, to continue working exist, the court may properly deny a spousal support modification request.

Whether we can terminate or reduce your existing spousal support obligation depends upon the many unique facts and circumstances of your case. If you have questions about how to modify your spousal support order, our team of highly experienced lawyers can meet with you to review your case and provide you with more detailed information about how best to proceed.

Spousal Support