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Proof of Cohabitation Establishes a Rebuttable Presumption of a Decreased Need for Support

After the dissolution of a 20-year marriage wife’s divorce lawyer sought a spousal support order.  Husband was ordered by the divorce court to pay wife, $215 per month as support for two minor children, and $220 per month, as spousal support. At the time of the order, husband earned $29,000 per year. Three years after the initial order, husband quit his job and he remained voluntarily unemployed. Husband was found in contempt for not paying the full support order within the first two years. Husband’s divorce lawyer later contested a permanent support order on the basis that he could not find gainful employment and the divorce court found that husband’s failure to find employment was a sham to skirt his financial obligations.

In addressing the child support award, the divorce court explained that to apply a capacity to earn standard, where the husband’s capacity to earn versus his actual income is used, to calculate the child support order, a divorce court must find three factors: (1) the ability to work; (2) the willingness to work; (3) an opportunity to work. The court stated that where the ability or opportunity to work is lacking then applying the earning capacity standard is inappropriate. However, when the supporting spouse is unwilling to pay the divorce court may apply the earning capacity standard to prevent the supporting spouse from shrinking their familial obligations.

The court further explained, the divorce court could consider husband’s entire history in determining that he intentionally remained unemployed. The court determined that husband had quit a well-paid position without concern for his legal responsibilities based on the fact that it was too “burdensome.” Thus, the court agreed with wife’s divorce attorney and determined the divorce court could properly consider husband’s earning capacity in denying husband’s motion to reduce temporary support.  Additionally, husband attempted to reduce or terminate his spousal and child support orders based on a “change in circumstances,” and husband’s divorce lawyer cited inability to find gainful employment as the basis.

Further, husband’s divorce lawyer filed a motion to modify permanent spousal support based on fact that wife was now co-habituating with another man. The court explained that proof of cohabitation establishes a rebuttable presumption of a decreased need for support. However, the divorce court did not explicitly find evidence that wife was, in fact, co-habituating with another man. Thus, the court explained that no rebuttable presumption had been established. Therefore, the court determined that it was appropriate to consider husband’s earning capacity in determining the appropriate spousal and child support.

In re Marriage of Regnery (1989) 214 Cal. App. 3d 1367