Does Cohabitation constitute a change of circumstances to modify support?

Yes. A supported spouse's cohabitation with a person of the opposite sex gives rise to a rebuttable presumption of proof of decreased need for spousal support.

Under the family code,"Cohabitation" means more than a roommate relationship; the statute contemplates a personal, romantic relationship. 

That being said, even a simple boarding arrangement under which expenses are shared or rent received may reduce the need for support and thereby constitute changed circumstances. Cohabitation may reduce the need for spousal support because sharing a household reduces the expenses of the supported spouse. Additionally, the cohabitant's income may be available to the supported spouse. 

Courts have found that an earlier determination that a spouse was merely a roommate does not preclude a court from later recognizing a change in the relationship and determining that the roommates are cohabiting. The change in the relationship constitutes a change of circumstances warranting a review of the existing spousal support award. In re Marriage of Bower, 96 Cal. App. 4th 893, (2d Dist. 2002).

A supporting spouse's cohabitation does not have the same impact on a case. The income of a supporting spouse's subsequent spouse or nonmarital partner will not be considered when determining or modifying spousal support. FC § 4323 (b). The provision was intended to exclude both direct and indirect consideration of new mate income. In re Marriage of Romero, 99 Cal. App. 4th 436, (4th Dist. 2002). 

While the statute does not expressly address expenses, it has been held that not only must new spouse income be disregarded but also the  additional expenses resulting from the remarriage. In re Marriage of Romero, 99 Cal. App. 4th 1436, 122 Cal. Rptr. 2d 220 (4th Dist. 2002).

If you are receiving spousal support and are considering moving in with a friend/partner, keep in mind that your ex could make a motion to reduce support. If you are interested in learning more, you can contact me at Amanda@gordonfamilylaw.com for more information.

Will spousal support be reduced when I retire?

Most likely. 

A supporting spouse's attainment of retirement age may constitute a material change of circumstances for purposes of a motion to modify a spousal support order.  This depends on the nature of employment, whether the supporting spousal will receive a pension, and what terms are included in the Marital Settlement Agreement. 

A material change in circumstances has been found when the supported spousal became old enough to access a retirement fund without penalty and where the accessibility and possible increase in value of the obligee's share of the retirement accounts were part of the parties' expressed reasonable expectations in entering the stipulated judgment. In re Marriage of Dietz, 176 Cal. App. 4th 387, 97 Cal. Rptr. 3d 616 (4th Dist. 2009), as modified, (Sept. 2, 2009)

If you are interested in learning more, you can contact me at Amanda@gordonfamilylaw.com for more information.

Is There A Simplified Way To Modify Child Or Spousal Support?

Yes, experienced family law attorneys in the San Francisco Bay Area will tell clients that in order to modify support, you will need the following forms:

•     Notice of Motion and Motion for Simplified Modification of Order for Child, Spousal, or Family Support (“Notice of Motion”) (form FL-390).

•     Responsive Declaration to Motion for Simplified Modification for Child, Spousal, or Family Support (form FL-392).

•     Findings and Order After Hearing (form FL-340) and Child Support Information and Order Attachment (form FL-342).

•     Income and Expense Declaration (form FL-150).

Next, follow these steps:

1)    Fill out and sign the Form FL 390: Notice of Motion and Motion for Simplified Modification of Order for Child, Spousal, or Family Support

2)    Fill out FL 150 or the Income and Expense Declaration. You must attach copies of your most recent W-2 form(s) and three most recent paycheck stubs.

3)    You must schedule a hearing date with your court clerk’s office before filing and serving these papers. You must enter the hearing date in item 1 of the Notice of Motion.

4)    Make at least three copies of these forms after you have completed them:

·    Notice of Motion and Motion for Simplified Modification of Order for Child, Spousal, or Family Support (form FL-390).

·    Financial Income and Expense Declaration (form FL-150).

5)    You must have one copy of each of the following papers served on the local child support agency and on the other party, if the other party is not the county:

·      Your Notice of Motion and Motion for Simplified Modification of Order for Child, Spousal, or Family Support (form FL-390).

·      Your Income and Expense Declaration (form FL-150).

·      A blank Responsive Declaration to Motion for Simplified Modification of Order for Child, Spousal, or Family Support (form FL-392).

·      A blank Income and Expense Declaration (form FL-150).

·      Information Sheet—How to Oppose a Request to Change Child, Spousal, or Family Support (form FL-393).

For instructions on how to serve these papers properly, see the information box on the Proof of Service, found on the reverse of the Notice of Motion (form FL-390). Whoever serves the papers should fill out and must sign the Proof of Service.

6)    Take the original of each of the completed forms to the court clerk’s office for filing.

You can contact me at Amanda@gordonfamilylaw.com for more information.

Does alimony or spousal support have to be tax deductible?

No. Parties who wish to avoid deductibility may do so by clearly stating that intention in their agreement or stipulated judgment or order.

The tax consequences of spousal support

If you are like many individuals divorcing in 2016, you are considering the tax implications of divorce.  Alimony or spousal support payments can provide a huge tax benefit, especially if the payor (person paying support) falls into AMT or Alternative Minimum Tax bracket. This is because your alimony payments are taken from the above the line calculation or subtracted from your gross income for the purposes of establishing your income tax bracket. You can take advantage of this tax benefit even if you have not yet received a final divorce decree.

Unfortunately, many clients hire a family law attorney after they have a back of the envelope or kitchen table deal with their ex-spouse. These agreements include spousal support or cash payments from one spouse to another, however, not all of these payments are considered spousal support and tax deductible.

In order for a Spousal Support payment to be tax deductible, there needs to be a signed agreement dated prior to the date of the first support payment is made.

This agreement needs to satisfy all of the IRS Section 71 requirements, which includes:

1) describing payments as an alimony or separate maintenance payment
2) describing payments as part of a separation agreement
3) saying that payments wouldn't be paid in the event of (after) the death of the payee spouse

If you are considering divorce and know that there will be an amount of spousal support between you and your spouse, we recommend you contact a Bay Area Family Law attorney to make sure that the payments can be deductible.  

Contact me at amanda@gordonfamilylaw.com for more information.