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Ely
Ely, Counselor at Law
Category: Family Law
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I was married for 13 years before getting divorced in 2004.

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I was married for 13 years before getting divorced in 2004. Our divorce agreement stated that I was to pay $875 a month for spousal support. Agreement also stated that such support would stop if ex-spouse cohabits or remarries. In June 2011, ex-spouse moved in with her boyfriend and we both agreed that spousal support will no longer be paid. Now one year later, they have to move out of their house and have decided to have separate households. She has decreed that I have to pay spousal support again. Do I have to?
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello and thank you for the opportunity to assist you. There might be a slight delay between your follow ups and my replies as I am typing out my answer, or taking a quick break. Please remember that this is general information only, not legal advice, and no attorney-client relationship is formed.

I am sorry for your situation. Yes and no.

Ca Fam § 4323(a)(1) does give rise to the presumption that cohabitation lessens the need for support, but it does not explain what would happen if the cohabitation ended. Nor does your decree.

So there is a presumption that she no longer needs it even if she has now moved out, but you'd have to prove it. Someone in your situation would need to file a petition to modify the divorce decree, and show that there has been a material change in circumstance that warrants that support is no longer needed. A motion for modification of spousal support may only be granted if there has been a material change of circumstances since the last order. (In re Marriage of Kuppinger (1975) 48 Cal. App.3d 628 [120 Cal. Rptr. 654].)

Alternatively, your attorney may simply wish to file a Motion for Clarification, on the theory that the decree already carries that the support should not be paid, and you are simply seeking to clarify that, and not to modify the decree to include this.

Said motion would be a lot quicker than the other petition.

Either way, you would need go to Court to get this confirmed, I am afraid.

I hope this finds you well. Please remember – I do not get credit for my time with you unless the answer is rated/concluded by you (a bonus, while no mandatory, is always appreciated); I work very hard to formulate an informative answer for you – please reciprocate my good faith. If you need more information, simply hit reply so we can chat until you are satisfied. You may always come back to this thread for follow ups on this topic free of charge.
Customer: replied 1 year ago.
Thank you for your help. She wants immediate reinstatement and is expecting spousal support payments to be sent ASAP. What should be my response to her? It is my feeling that I should say the following:

"Our divorce aggreement orders that I pay spousal support in the amount of $875 per month and that would end when ex-spouse cohabits or remarries. When you chose to move in with your boyfriend, we agreed that the support would no longer continue. There is not a court order or an agreement between us that says what happens if you choose to no longer cohabit. I will not reinstate spousal support payments until such an order by the court has been made to reinstate."

Is this valid?
Expert:  Ely replied 1 year ago.
Hello,

At this point, individuals in your situation may simply choose not to respond. If you respond one way or another, she would know what you are up to. You want to catch her off-guard.

Your next step should be talking to an attorney and asking if they believe that (1) petition to modify or (2) motion for clarification is the better choice for your scenario; before filing.

I hope this finds you well. Please remember – I do not get credit for my time with you unless the answer is rated/concluded by you (a bonus, while no mandatory, is always appreciated); I work very hard to formulate an informative answer for you – please reciprocate my good faith. If you need more information, simply hit reply so we can chat until you are satisfied. You may always come back to this thread for follow ups on this topic free of charge.
Customer: replied 1 year ago.
But with our children's live so entwined with each other, it will be difficult not to give some sort of response. Do you have a recommendation on any kind of response if I'm pressed to give one?
Expert:  Ely replied 1 year ago.
Hello,

You are putting me on the line. Depending on how/if you respond, she may decide to file a contempt enforcement on you. This would then still make your matter arguable, but you would have to also defend yourself from contempt. I cannot predict how she'd act, and I really do not wish to give you an answer that would make your life harder, and make me look bad. I hope this makes sense...

If you are pressed into a response, it may behoove you to make it as generic as possible. A written, certified letter along the lines of, "Thank you for your correspondence of (date). I have to check something with my attorney, and will respond soon."

I hope this finds you well. Please remember – I do not get credit for my time with you unless the answer is rated/concluded by you (a bonus, while no mandatory, is always appreciated); I work very hard to formulate an informative answer for you – please reciprocate my good faith. If you need more information, simply hit reply so we can chat until you are satisfied. You may always come back to this thread for follow ups on this topic free of charge.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 85046
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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