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Ask Legalease Your Own Question
Legalease
Legalease, Lawyer
Category: Family Law
Satisfied Customers: 16288
Experience:  13 years experience, divorce & custody issues, protective orders, child abuse issues
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I hope you can advise me. Im at the end of my mediation. As

Customer Question

I hope you can advise me. Im at the end of my mediation.
As I indicated in today's telephone conversation, Celes' consulting attorney suggested the following language with regards ***** *****:
"In the event that Petitioner commences co-habitation with an unrelated male (other than a roommate), she shall notify Respondent within seven days and Family Code section 4323 shall apply in any future spousal support modification proceedings."
Celes and her attorney agree to the Gavron notice and basis of support suggested by your attorney.
The consulting attorney suggested stronger language regarding your waiver of your right to receive support from Celes, recommending the following language, "Respondent and his counsel have each reviewed In Re Marriage of iberti and In Re Marriage of Vomoacka and intend for spousal support jurisdiciotn for Respondent to be irrevocably terminated as ordered and upheld by Iberti court."
Celes consulting attorney also recommended that Paragraph 28(d) be modified to read, "Each party shall pay their own attorney's fees through execution of this Stipulated Judgment." This would remove the following language, "except if modification or enforcement are necessary, the other party may seek an order to pay the prevailing party's legal fees and costs of enforcement."
Please provide your comments once you have had the opportunity to review these recommendations with your attorney.
Submitted: 4 months ago.
Category: Family Law
Expert:  Legalease replied 4 months ago.

Hello there --

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Are you the party required to pay spousal support?

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MARY

Customer: replied 4 months ago.
Customer: replied 4 months ago.
I just need to know if Cekes! Attorney's verbiage is ok and going to make it so support can be lowered if she co-habituates. Thank you
Expert:  Legalease replied 4 months ago.

Hello again --

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I am sorry for the delay in getting back to you on this matter but I just came back online for the day.

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The language used does not QUITE state that her support will be lowered if she cohabitates. It states that "any cohabitation situation will be governed by the provisions of Family Code Section 4323 shall apply ..." Family Code section 4323 actually requires you to bring the matter back into family court and request that the judge lower or stop the spousal support because of the cohabitation situation. It also gives your ex the right to contest the cut off and bring evidence to the court regarding why she still needs the support despite the cohabitation situation OR she can try to prove that she is just a roommate with this other person. So, if you were seeking absolute language that states that you will be notified of the cohabitation in 7 days and you have the right to immediately stop the support payments, that is NOT what this language says. What you have the right to do is after you receive notice from her of the cohabitation, then you must continue to pay support until you sign the matter up in family court again for a hearing on the matter. Then you have to ask the judge to permit you to stop paying the support. This statute ALSO states that the parties CAN agree to anything that they want in this regard in writing in the divorce -- so you CAN go back and request the right to terminate the support immediately upon notification from her that she is in a cohabitation living relationship and ask that this be put into writing in the divorce agreement documents. My suggestion is that you tell the consulting attorneys that you do not believe that you should continue paying support AND having to pay for an attorney to bring a motion to the court in order to REQUEST that the spousal support be stopped. You can have the language written so that you can terminate the support immediately upon notification and if your ex feels that she still has extenuating circumstances that she needs the support, she can take the matter back into the family court and request that the judge reinstate some amount of spousal support despite the fact that she is in a romantic cohabitation situation with another person (male or female). I would word that provision like this in your agreement:

"In the event that the Petitioner commences cohabitation with an unrelated person (male or female, other than a roommate) she shall notify the Respondent within seven days of the start of such cohabitation and Respondent can terminate spousal support as of the end of the month that such notification is received by Respondent. Family Code section 4323 shall apply to the extent that Petitioner believes that extenuating circumstances exist such that spousal support should continue despite such cohabitation granting Petitioner the right to petition the family court for an extension of spousal support even after the cohabitation has commenced. "

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Regarding the second point of the language above and your right to receive spousal support -- your are basically giving up the right to receive spousal support now and at any point in the future. With this language, you are agreeing that the family court does not even have jurisdiction over the question of spousal support from her to you. This applies even if at some point in the future you become disabled and unable to work and you might otherwise meet the courts criteria for extenuating circumstances that are bad enough to order her to pay you spousal support. IF you are comfortable giving up all of your rights to receive any type of spousal support from her either now or in the future, then that language above works and you do not need any changes to it.

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Regarding the change in the language to paragraph 28(d), I would not advise agreeing to this change and it should be left alone with the original language as is. Each of you and your ex spouse need to have the right to seek attorneys fees against the other in a situation where perhaps either one or both of you is not following the terms of the divorce agreement and such non compliance is done in bad faith or out of spite (it happens all the time with divorced couples). However, simply removing the language from 28(d) does not mean that you can never seek the payment of attorneys fees from her -- the language just puts you in the position of having to petition the judge to maker her pay for your attorneys fees and the decision is then up to the judge. Generally speaking, the judge will grant such a motion request if the judge believes that your ex brought a court motion action against you in bad faith or out of spite.

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Please let me know if you have any further questions. I will certainly answer any further follow up questions you may have here in another message block. However, if you do not have more questions, I ask that you please press a positive rating above so I will be paid for my time assisting you this evening? Pressing the middle star or the fourth or fifth star to the right of the middle star above is a positive rating. Pressing a positive rating will not cost any additional money -- it is just a trigger that is used by this website to pay me for my time (I receive nothing if you leave the website without pressing a positive rating). THANK YOU VERY MUCH !!

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MARY

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