GMan42
journeyman
Reged: 09/21/06
Posts: 71
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I thought I was through with this horror after our MSA was accepted by the court this month (Apr). Three days later x wants to talk to me about a toolbox. Turns out she really wanted to let me know about her “committed relationship” and that her significant other would be living and paying rent in the home I quitclaimed to her in October. During this past weekend with my adult children (DD 27, DS 25), I was informed that the significant other (her former boss and now coworker) was in fact living in our home at the same time that we were negotiating the settlement – a fact that x conveniently left out of our recent conversation, as well as leaving it off of her signed disclosure statement. She also asked the children not to tell me about this arrangement. Making our children party to her deception causes me the greatest anger of all. Our MSA states that I will pay spousal support until I am 65 (16 more years), until one of us dies, or until she remarries. It also states that the agreement is unmodifiable. California Family Law Code states that cohabitation is prima-facie evidence that decreased spousal support is warranted.
I do not want the former love of my life and the mother of my children to suffer, but I do want to protect any rights I may have to decrease my obligation. Can cohabitation be equated to marriage in determining spousal support obligations? Any opinions on where the just and moral ground is regarding this matter?
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googledad
Carpal \'Tunnel
Reged: 12/31/05
Posts: 10207
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Bad & sorta good news :
The bad , your agreement doesn't stipulate cohabitation as a reason for ending SS , so you will have to continue paying .
3591. (a) Except as provided in subdivisions (b) and (c), the
provisions of an agreement for the support of either party are
subject to subsequent modification or termination by court order.
(b) An agreement 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.
(c) An agreement for spousal support may not be modified or
revoked 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
The sorta good news , you can petition to have your MSA put aside .
2121. (a) In proceedings for dissolution of marriage, for nullity
of marriage, or for legal separation of the parties, the court may,
on any terms that may be just, relieve a spouse from a judgment, or
any part or parts thereof, adjudicating support or division of
property, after the six-month time limit of Section 473 of the Code
of Civil Procedure has run, based on the grounds, and within the time
limits, provided in this chapter.
(b) In all proceedings under this chapter, before granting
relief, the court shall find that the facts alleged as the grounds
for relief materially affected the original outcome and that the
moving party would materially benefit from the granting of the
relief.
2122. The grounds and time limits for a motion to set aside a
judgment, or any part or parts thereof, are governed by this section
and shall be one of the following:
(a) Actual fraud where the defrauded party was kept in ignorance
or in some other manner was fraudulently prevented from fully
participating in the proceeding. An action or motion based on fraud
shall be brought within one year after the date on which the
complaining party either did discover, or should have discovered, the
fraud.
(b) Perjury. An action or motion based on perjury in the
preliminary or final declaration of disclosure, the waiver of the
final declaration of disclosure, or in the current income and expense
statement shall be brought within one year after the date on which
the complaining party either did discover, or should have discovered,
the perjury.
(c) Duress. An action or motion based upon duress shall be
brought within two years after the date of entry of judgment.
(d) Mental incapacity. An action or motion based on mental
incapacity shall be brought within two years after the date of entry
of judgment.
(e) As to stipulated or uncontested judgments or that part of a
judgment stipulated to by the parties, mistake, either mutual or
unilateral, whether mistake of law or mistake of fact. An action or
motion based on mistake shall be brought within one year after the
date of entry of judgment.
(f) Failure to comply with the disclosure requirements of Chapter
9 (commencing with Section 2100). An action or motion based on
failure to comply with the disclosure requirements shall be brought
within one year after the date on which the complaining party either
discovered, or should have discovered, the failure to comply.
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Careful. We don't want to learn from this.
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Miranda
Carpal \'Tunnel
Reged: 06/02/05
Posts: 20822
Loc: North of Mexico
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Oh I'd request the MSA be set aside due to fraud. She blatantly lied and withheld discovery from the courts.
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13.1...because I am only half crazy!
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PhoenixRising
Carpal \'Tunnel
Reged: 01/05/07
Posts: 3681
Loc: New York
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So he spends all this money to go to court to get it set aside...
And how does he prove that she lied? Suponea his kids? Anyone here EVER try to get their kids to tell the truth about the other parent in open court? Even adult kids?
Would anyone here ever even try? Ewwwww....
My ex said he that he was living in my house for a year before anyone would believe that he left us.
Then he said he was homeless and poor and living with his parents for a year.
NEVER really owned up to the fact that he was living with various girlfriends...
Pictures of cars in front of houses, evidence of mail being sent to that address, NOTHING was considered enough to prove where he was living and that was while it was going on.
YOU are asking him to prove something that is long past...
IMHO, NOT going to happen and is a waste of money, BTDT...
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Miranda
Carpal \'Tunnel
Reged: 06/02/05
Posts: 20822
Loc: North of Mexico
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Mine was set aside for much less than that. And spending all what money? Would it counter his alimony payments? He could file the motion himself and hire an attorney for the court date.
I don't see why people advise allowing women to lie, cheat, and basically steal. It seems this man has been extremely fair to his ex and she has bascially spit in his face. You advocate that?
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13.1...because I am only half crazy!
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googledad
Carpal \'Tunnel
Reged: 12/31/05
Posts: 10207
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Grounds for modification of SS from the CA code :
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.
The amount of SS may have been lowered if his ex had disclosed at the time of the separation proceedings that she was cohabitting
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Careful. We don't want to learn from this.
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GMan42
journeyman
Reged: 09/21/06
Posts: 71
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Thanks for the good feedback and comments. The matter is before my attorney to provide some alternatives – including doing nothing. I would never want to put my kids through any more than they’ve already suffered through, so that may ultimately cast my decision. There are plenty of others though who could be subpoenaed – her sister, a close neighbor friend. My interest will be in preserving any right I may have to set aside the MSA or otherwise challenge support in the future. In hindsight I should have argued stronger for the cohabitation clause. It did come up but I let it go looking at Section 4323, CA FLC. Her quick and sharp reaction at the time is now very interesting. I would like to prohibit her from being married without a license just to keep collecting a lot of money.
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Debbie_L
Pooh-Bah
Reged: 06/06/05
Posts: 2031
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"I would never want to put my kids through any more than they’ve already suffered through, so that may ultimately cast my decision."
Your kids are 25 and 27 according to your previous post. You must be joking right? They are adults, so what exactly is this going to have an affect on them? They didn't seem to care about the effect on you when they lied for their mother about her living arrangements. You absolutely must try to get the support modified or terminated. She screwed you over big time.
PS - In my opinion, co-habitation with your "significant other" should be grounds to stop support. She has a partner to help with the bills. Here in Canada it would be considered a common law marriage and treated no differently than an actual marriage (even if they were a same sex couple).
Unfortunately, you got screwed by being a nice guy. I'm sad to see that. Please take care of your rights and try to rectify this situation.
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GMan42
journeyman
Reged: 09/21/06
Posts: 71
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My children are very angry with their mother for being put in the middle. Particularly my son who wants little do do with her. He also blames her for the failure of our marriage. They both just want to have two parents and see us go on with our lives. I do too. While the dollars are significant (high 6 figures over the 16 years), I have been blessed with the ability to afford such expenses and still live a comfortable, though not extravagent life.I also care about the 27 years my ex and I spent together.
This will be a difficult decision for me. I appreciate all the advise.
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yregna
veteran
Reged: 07/25/06
Posts: 1265
Loc: Oregon
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Quote " I still care about the 27 years..."
Dude, with an attitude about that you wonder why you got screwed ? You deserve it...
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"Anything free is worth what you pay for it..."
"Climate is what we expect, weather is what we get"
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