You have a lot of opportunities to be creative when drafting your marital dissolution agreement. If you and your spouse are able to agree on the terms of their divorce, you have a great deal of flexibility when working through the division of your assets and debts, child care schedule, and issues like alimony payments.
There are limits, however. I’ve written previously how the various types of alimony can be stopped or modified. The Tennessee Court of Appeals recently addressed a situation where the parties agreed that the husband would pay support to the wife, but the support would terminate automatically if the wife were to get remarried. The exact language follows:
Husband will pay to wife as Transitional Alimony Three Thousand Dollars ($3,000.00) per month for twenty-four (24) months beginning on March 1, 2008 and continu[ing] for twenty-three (23) months. After this twenty-four (24) months, Husband shall pay One Thousand Five Hundred Dollars ($1,500.00) for the following twelve (12) months. Transitional Alimony shall be paid for a total of Thirty Six (36) months. Said payments will self-terminate upon the death of wife. Said payments will self-terminate upon the remarriage of wife. Remarriage includes both the ceremonial marriage and cohabitation with an unrelated person for a total of thirty (30) days. . . .
After some period of time, the ex-husband came to believe his ex-wife was living with another person (with the help of a private investigator), so he stopped paying the support. Most of the Court’s opinion centers on whether the former husband was in contempt of court for not paying the support and the amount of attorney’s fees. What interested me the most about this case, however, was a brief discussion over whether the parties could agree that the alimony could stop automatically.
Alimony that will self-terminate?
Neither of the parties brought up the issue of whether a self-terminating alimony provision is proper, so the court didn’t make a formal interpretation of the law. However, the court did say that a “self-terminating” provision such as this appears to be in violation of current law in this state, and people would rely on such language “at their peril.” (See my note at the end of the post, however)
The support here was transitional alimony. T.C.A. 36-1-121 says that transitional alimony shall remain unmodifiable, unless the parties agree otherwise, as they did here. At the time of the divorce, the court can also create certain conditions upon which the support would end. However, this court points out that even though the marital dissolution agreement is a contract between the parties, it loses some of it’s contractual nature when it becomes an order of the court. As such, the parties must seek approval of the court to modify the alimony provisions. Because the former husband didn’t ask for the court’s permission to stop his payments, he put himself in danger of going to jail for some period of time.
Alimony in futuro
I must point out that T.C.A. 36-1-121 also says that “[a]n award for alimony in futuro shall terminate automatically and unconditionally upon the death or remarriage of the recipient.” I believe this says that it would not be necessary to seek the permission of a court to terminate this form of alimony if your former spouse were to get remarried. A requirement to seek judicial approval would be a “condition”, in my mind.
However, the outcome in these cases can vary greatly depending upon your unique facts. If you are either paying or receiving alimony payments and you believe your support should either be modified or terminated, you should seek the advice of a lawyer to help you. Contact me to find out how I can help you with your situation.
(Note: Most of the discussion about automatic termination of support in the case is contained in a footnote. I don’t doubt that the Court of Appeals based their opinion on proper law, but in the footnote they made reference to a case that can’t be right. Near the end of the footnote, they state a quote taken directly from Barns v. Barns. However, when I read Barns I don’t see that language in there anywhere. Also, the Court claims a case decided in 1975 relied on a rule stated in Barns, although the latter case was decided in 2006. Even the Court of Appeals makes mistakes.)