What Happens to Child Support and Spousal Maintenance if You Cohabitate
During or After Divorce?
Couples going through a divorce are often unclear as to what legal effect,
if any, moving in with a new partner will have on their legal rights.
Most commonly, there is a concern that co-habitation (living with a new
boyfriend or girlfriend in a ‘marriage-like’ arrangement)
might affect a spousal maintenance award or the amount of child support
that is to be paid or received.
The following provides general information for individuals considering
moving in with a new spouse or partner during or following a divorce—as
well as those seeking to modify maintenance or child support based upon
the cohabitation of a former spouse.
What is the Legal Effect of Cohabitation on Spousal Maintenance?
In general, in Washington State, a spousal maintenance award (sometimes
called ‘alimony’) cannot be modified unless:
there has been a “substantial change in circumstances,”
that was not contemplated by the parties at the time of their divorce, and
that implicates the ability of one spouse to make their required payments
or the financial need of the spouse receiving maintenance.
For example, if a spouse that has been ordered to pay spousal maintenance
declares bankruptcy, loses a job or experiences a failure of a business,
a court may consider the new financial situation to be a “substantial
change in circumstances” and accordingly decrease the amount required
to pay. Similarly, if a spouse entitled to receive maintenance wins the
lottery, the decreased financial need will also probably result in a decrease
or termination of the maintenance award.
Based upon Washington’s “substantial change in circumstances”
rule, cohabitation (or even remarriage), by itself, does not justify the
modification of a spousal maintenance. In fact, the termination of spousal
maintenance based solely upon cohabitation is not permitted in Washington State.
However, if cohabitation results in significantly increased economic support
(perhaps as a result of a new spouse’s income) and meaningfully
reduces financial need, then a reduction or termination of alimony obligations
might be justified. In the same way, if cohabitation results in a spouse’s
substantially increased ability to pay, the monthly required payment may
What is the Legal Effect of Cohabitation on Child Support?
The rules concerning cohabitation and the modification of child support
are similar to those governing the modification of spousal maintenance
awards. Child support orders cannot be modified based upon a showing of
cohabitation alone. However, if one spouse has experienced a “substantial
change” in financial circumstances as a result of cohabitation,
it is possible to petition the court for a modification of a child support
order. Because of the way child support is calculated, however, it sometimes
difficult to prove that cohabitation has resulted in a relevant “substantial
Child support obligations are allocated between parents based on each parent's
share of their combined monthly net income. Thus, the income of a new
non-parent spouse or partner (who is not legally obligated to care for
or support the child at all) is generally not included in calculations
of child support. As a result, even cohabitation with a very wealthy new
spouse may be insufficient to justify a modification of child support.
Of course, that does not mean that the income of a new spouse is entirely
irrelevant to a court’s decision. In fact, a number of Washington
courts have chosen to grant a modification of a child support order based
largely on the income of a party’s new spouse because it affects
that party’s “economic prospects” (a factor that a court
is permitted to consider when adjusting child support).
Thus, like spousal maintenance, cohabitation will not automatically or
necessarily result in the modification of a child support order, but it
may be considered by the court when determining whether a substantial
change in circumstances has occurred.
Can a Couple Agree to Modify Child Support or Spousal Maintenance (Through
a Pre-nuptial or Separation Agreement) Due to Cohabitation?
Child support, because it is determined by statute and based upon income,
cannot be modified by private agreement. Any attempt to include a provision
in a pre-nuptial or separation agreement limiting the payment of child
support based upon cohabitation is ill advised and will not be enforceable in court.
Agreements to modify spousal maintenance upon cohabitation are more common.
Some agreements and divorce decrees, in fact, explicitly list certain
events (including cohabitation) that will trigger an automatic modification.
If your decree or agreement includes such a provision, either spouse may
petition the court for a modification of a maintenance award based upon
one spouse’s choice to cohabitate. The outcome of that petition
will likely depend upon an evidentiary hearing conducted by the court,
and many Washington courts have found modification provisions triggered
by cohabitation to be unenforceable. Thus, it is important to recognize
that, in this arena, even a written agreement may not provide a guaranteed result.
An evidentiary hearing is not necessary if both parties can agree to a
modification of spousal maintenance. An agreed upon modification can simply
be drafted by the parties and submitted to a judge for approval.
For more information concerning the modification of spousal maintenance
or child support upon cohabitation, contact a McKinley Irvin family lawyer
or read more about negotiating and
calculating child support and