Gender Equality, And An Interesting Change In The Family Code For Terminating Spousal Support

Up until this year, on several occasions I have come across the following scenario.  A client will ask me to file for a modification of spousal support, years after their judgment with their ex-spouse, with the argument that their ex-spouse is co-habitating with another partner.  Sometimes, the ex-spouse is cohabiting in a gay relationship.  This presented a roadblock in getting a modification.  The pre-2014 code reads:    "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." -- California Family Code Section 4323.

The problem the client had was their ex-spouse was now in a gay relationship and living with their partner, and could the Courts consider the Family Code since it was not a cohabitation with a person of the opposite sex?    Courts could prevent jurisdiction on this issue because the code was very specific about the term "opposite sex".

Family Code Section 4323 was designed to address the reality that often when an ex-spouse lives with another person, their expenses improve, and the supporting party can open the door to modification or termination of an old spousal support/alimony order.  Section 4323 created that rebuttable presumption, putting the burden on the supported spouse to overcome in Court.  

I and other counsel faced an additional challenge when the supported ex-spouse was in a gay relationship, namely that the old code stated "cohabiting with a person of the opposite sex."  Judges on the bench could put a stop to some modification proceedings because gay/lesbian cohabitation was not fulfilling the element of "opposite sex".  

The 2015 Family Code has removed that roadblock altogether.  Section 4323 now reads "Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a nonmarital partner."  You can review the entire code here.  

This change in the wording will make modification of post-judgment spousal support easier to present in Court, since all cohabitation can allow the Court to take jurisdiction on this issue.  

As the LGBT issues in Family Court will become more prevalent, modification of spousal support will continue to be a very hot topic in California Family Law.  The gender-neutral rewording in the Family Code will continue to raise up new legal issues for the near and far future of California Family Law.