If my ex is living with someone else, can I get the alimony payments stopped?
Full Question:
My ex. and I were married for over twenty years. She is now and has been living with a boy friend, in another state. Can I get my alimony payments to her stopped.
05/21/2007 |
Category: Divorce ยป Alimony |
State: California |
#5445
Answer:
You may be able to petition the court in a modification proceeding to modify your alimony payments due to a change in circumstances.
The relevant California statutes are as follows:
California Family Code Division 9, Part 3, Chapter 2, § 4323
(a) (1) 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 person of the opposite sex. Upon a determination
that circumstances have changed, the court may modify or terminate
the spousal support as provided for in Chapter 6 (commencing with
Section 3650) of Part 1.
(2) Holding oneself out to be the husband or wife of the person
with whom one is cohabiting is not necessary to constitute
cohabitation as the term is used in this subdivision.
(b) The income of a supporting spouse's subsequent spouse or
nonmarital partner shall not be considered when determining or
modifying spousal support.
(c) Nothing in this section precludes later modification or
termination of spousal support on proof of change of circumstances.
Division 9, Part 1, Chapter 6, Article 1, § 3651
(a) Except as provided in subdivisions (c) and (d) and subject to
Article 3 (commencing with Section 3680) and Sections 3552, 3587, and
4004, a support order may be modified or terminated at any time as the
court determines to be necessary.
(b) Upon the filing of a supplemental complaint pursuant to Section
2330.1, a child support order in the original proceeding may be modified
in conformity with the statewide uniform guideline for child support to
provide for the support of all of the children of the same parents who
were named in the initial and supplemental pleadings, to consolidate
arrearages and wage assignments for children of the parties, and to
consolidate orders for support.
(c)(1) Except as provided in paragraph (2) and subdivision (b), a
support order may not be modified or terminated as to an amount that
accrued before the date of the filing of the notice of motion or order to
show cause to modify or terminate.
(2) If a party to a support order is activated to United States
military duty or National Guard service and deployed out of state, the
service member may file and serve a notice of activation of military
service and request to modify a support order, in lieu of a notice of
motion or order to show cause, by informing the court and the other party
of the request to modify the support order based on the change in
circumstance. The service member shall indicate the date of deployment,
and if possible, the court shall schedule the hearing prior to that
date. If the court cannot hear the matter prior to the date of deployment
out of state, and the service member complies with the conditions set
forth in the Servicemembers Civil Relief Act, Section 522 of the Appendix
of Title 50 of the United States Code, the court shall grant a stay of
proceedings consistent with the timelines for stays set forth in that
section. If, after granting the mandatory stay required by Section 522 of
the Appendix of Title 50 of the United States Code, the court fails to
grant the discretionary stay described under the law, it shall comply
with the federal mandate to appoint counsel to represent the interests of
the deployed service member. The court may not proceed with the matter if
it does not appoint counsel, unless the service member is represented by
other counsel. If the court stays the proceeding until after the return
of the service member, the service member shall request the court to set
the matter for hearing within 90 days of return from deployment or the
matter shall be taken off calendar and the existing order may not be made
retroactive pursuant to subdivision (c) of Section 3653.
(3) A service member who does not file a notice of activation of
military service and request to modify a support order or order to show
cause or notice of motion prior to deployment out of state nonetheless
shall not be subject to penalties otherwise authorized by Chapter 5
(commencing with Section 4720) of Part 5 on the amount of child support
that would not have accrued if the order had been modified pursuant to
paragraph (2), absent a finding by the court of good cause. Any such
finding shall be stated on the record.
(4) Notwithstanding any other provision of law, no interest shall
accrue on that amount of a child support obligation that would not have
become due and owing if the activated service member modified his or her
support order upon activation to reflect the change in income due to the
activation. Upon a finding by the court that good cause did not exist for
the service member's failure to seek, or delay in seeking, the
modification, interest shall accrue as otherwise allowed by law.
(d) An order for spousal support may not be modified or terminated to
the extent that a written agreement, or, if there is no written
agreement, an oral agreement entered into in open court between the
parties, specifically provides that the spousal support is not subject to
modification or termination.
(e) This section applies whether or not the support order is based upon
an agreement between the parties.
(f) This section is effective only with respect to a property
settlement agreement entered into on or after January 1, 1970, and does
not affect an agreement entered into before January 1, 1970, as to which
Chapter 1308 of the Statutes of 1967 shall apply.
(g)(1) The Judicial Council, no later than 90 days after the effective
date of the act adding this section, shall develop any forms and
procedures necessary to implement paragraph (2) of subdivision (c). The
Judicial Council shall ensure that all forms adopted pursuant to this
section are in plain language.
(2) The form developed by the Judicial Council, in addition to other
items the Judicial Council determines to be necessary or appropriate,
shall include the following:
(A) The date of deployment and all information relevant to the
determination of the amount of child support, including whether the
service member's employer will supplement the service member's income
during the deployment.
(B) A notice informing the opposing party that, absent a finding of
good cause, the order will be made retroactive to the date of service of
the form or the date of deployment, whichever is later.
(C) Notice that the requesting party must notify the court and the
other party upon return from military duty and seek to bring any
unresolved request for modification to hearing within 90 days of return,
or else lose the right to modify the order pursuant to this section.
§ 3652 Fam.
Except as against a governmental agency, an order modifying,
terminating, or setting aside a support order may include an award of
attorney's fees and court costs to the prevailing party.
§ 3653 Fam.
(a) An order modifying or terminating a support order may be made
retroactive to the date of the filing of the notice of motion or order to
show cause to modify or terminate, or to any subsequent date, except as
provided in subdivision (b) or by federal law (42 U.S.C. Sec. 666(a)(9)).
(b) If an order modifying or terminating a support order is entered due
to the unemployment of either the support obligor or the support
obligee, the order shall be made retroactive to the later of the date of
the service on the opposing party of the notice of motion or order to
show cause to modify or terminate or the date of unemployment, subject to
the notice requirements of federal law (42 U.S.C. Sec. 666(a)(9)), unless
the court finds good cause not to make the order retroactive and states
its reasons on the record.
(c) If an order modifying or terminating a support order is entered due
to a change in income resulting from the activation to United States
military service or National Guard duty and deployment out of state for
either the support obligor or the support obligee, the order shall be
made retroactive to the later of the date of the service on the opposing
party of the notice of activation, notice of motion, order to show cause
to modify or terminate, or the date of activation, subject to the notice
requirements of federal law (42 U.S.C. Sec. 666(a)(9)), unless the court
finds good cause not to make the order retroactive and states its reasons
on the record. Good cause shall include, but not be limited to, a finding
by the court that the delay in seeking the modification was not
reasonable under the circumstances faced by the service member.
(d) If an order decreasing or terminating a support order is entered
retroactively pursuant to this section, the support obligor may be
entitled to, and the support obligee may be ordered to repay, according
to the terms specified in the order, any amounts previously paid by the
support obligor pursuant to the prior order that are in excess of the
amounts due pursuant to the retroactive order. The court may order that
the repayment by the support obligee shall be made over any period of
time and in any manner, including, but not limited to, by an offset
against future support payments or wage assignment, as the court deems
just and reasonable. In determining whether to order a repayment, and in
establishing the terms of repayment, the court shall consider all of the
following factors:
(1) The amount to be repaid.
(2) The duration of the support order prior to modification or
termination.
(3) The financial impact on the support obligee of any particular
method of repayment such as an offset against future support payments or
wage assignment.
(4) Any other facts or circumstances that the court deems relevant.