When a couple gets divorced in California, courts will sometimes order one spouse to pay the other financial support in the form of alimony (called spousal support in California). (Cal. Fam. Code § 4300.) When the supported spouse remarries, the spouse paying alimony will likely want to end these payments.
This article explains how a supported spouse's remarriage or cohabitation affects alimony in California.
In California, alimony usually takes the form of monthly payments from one ex-spouse to the other, for a specific period of time. Spouses may also pay alimony in a lump sum, by a transfer of property, or by direct payment of other expenses (such as mortgage payments).
Courts will award spousal support to provide monetary assistance to a low-earning or unemployed spouse, based on each spouse's financial circumstances.
There are many types of alimony, most of which have an exact termination date. For example, in California, short-term alimony typically lasts for about one-half of the length of the marriage.
Many couples include a provision in their marital settlement agreement (MSA) (or in a prenuptial agreement), which spells out the specific date and year upon which spousal support payments will stop. If the parties fail to set a particular termination date (or event) upon which spousal support will cease, then alimony will end according to state law.
A common question that arises for divorced couples is whether the supported spouse's remarriage will bring an end to alimony payments. Similarly, if the supported spouse decides not to get married, but lives with a partner and shares income and expenses like a married couple, will that spouse be entitled to collect ongoing spousal support payments?
If the marital settlement agreement and divorce order are silent on this subject, the parties will have to rely on California law to answer these questions.
In California, the obligation to pay future alimony automatically ends when the supported spouse gets remarried. Under state law, the paying spouse does not need to file a motion to terminate support, and no court action is required. (Cal. Fam. Code § 4337.)
The supported spouse must notify the paying spouse of the remarriage, or the court will order the supported spouse to provide a refund for excess payments after the wedding date. (Cal. Fam. Code § 4334.)
However, the receiving spouse's remarriage will not terminate overdue support, vested lump-sum alimony payments, or transfers of property.
If your ex remarries and fails to inform you or claims you must cotninue paying alimony, you'll have to go back to court and file a motion to terminate support. You can request a refund for excess payments at that time. A judge will decide based on the circumstances of your case and the language in your MSA, if any.
Divorcing couples can agree to waive Family Code Section 4337 so that remarriage will not affect alimony. If your MSA states explicitly that your spouse's remarriage will not terminate spousal support, then you will still be on the hook for future support payments, even if your ex remarries. It's important to consult with an experienced family law attorney before signing an agreement governing remarriage and alimony.
If the court later annuls the supported spouse's remarriage (because the remarriage was void due to the new spouse's bigamy, coercion, or insanity), the court can decide whether alimony should begin again, based on what is fair to both spouses.
When a supported spouse gets remarried, alimony typically ends. However, if a supported spouse is simply living with someone else or has an increase in income, the paying spouse needs to file a motion to modify support and ask a court order to lower or end alimony payments.
If you're paying alimony and your ex-spouse is living with someone else or has increased income, you should ask your ex-spouse to agree to lower or end alimony. You can sign a formal agreement and file it with your divorce court to modify or terminate alimony.
If your ex-spouse disagrees, you should file a motion to modify or terminate alimony with the court that granted your divorce. (Cal. Fam. Code § 4326) You'll need to state how circumstances have changed and why that warrants a modification or termination of alimony.
For example, your spouse's increase in income, your spouse's lowered needs, or your spouse's living with another person in a romantic relationship may all qualify as a "change in circumstances" that the court can use to lower or end your support payments.
Under California law, there is a rebuttable presumption that alimony can be reduced, and possibly terminated when the supported spouse is cohabiting with someone else. (Cal. Fam. Code § 4323.) The rebuttable presumption means that the court will presume that a reduction or termination of alimony is appropriate unless the supported spouse can prove a continuing need for alimony payments despite living with someone else.
As with remarriage, you and your spouse can agree in your divorce settlement agreement to continue spousal support if the supported spouse remarries. If you don't have a written agreement, and the supported spouse will not agree to lower or end alimony, you can file a motion asking the court to modify support. The court won't directly consider the income of the person with whom the supported spouse is living when deciding whether to lower or end alimony, only the supported spouse's new financial circumstances.
Cohabitation is more than a roommate relationship—it usually requires a personal, romantic relationship. However, if the supported spouse is living in a roommate situation, the court may still find the need for support has decreased and may modify alimony.
If you have additional questions about spousal support and remarriage, consult with a California family law attorney.