While the divorce was pending, the parties in this case agreed on terms of a marital dissolution agreement which settled all of the issues in their case.  One of the terms required the husband to pay alimony to the wife according to the following language:

The Husband agrees to pay to the Wife as alimony in futuro the sum of two thousand ($2,000.00) Dollars per month, until the Wife dies or remarries, until the Husband dies, or until a third person not the Wife’s child, moves into the Wife’s residence. The amount shall further be reduced by payments received by Wife from either retirement plan and/or Social Security payments.

A couple of years after the divorce was final, the former husband filed a petition with the court to terminate his alimony because he believed his ex-wife had moved her mother into her home.  At a hearing, the judge found that the wife had indeed moved her mother into the home.  The court terminated the husband’s alimony obligation, ordered the wife to repay husband $34,000 in support he had paid between the day he filed the petition and the date of the hearing, and awarded husband his attorney’s fees in the amount of $10,134.99.

Wife says there was no statutory basis for termination

In her appeal, the wife pointed out that Tennessee Code Annotated 36-5-121(f) has the following to say:

(f)(1) Alimony in futuro, also known as periodic alimony, is a payment of support and maintenance on a long term basis or until death or remarriage of the recipient. Such alimony may be awarded when the court finds that there is relative economic disadvantage and that rehabilitation is not feasible, meaning that the disadvantaged spouse is unable to achieve, with reasonable effort, an earning capacity that will permit the spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.

(2)(A) An award of alimony in futuro shall remain in the court’s control for the duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circumstances.

(B) In all cases where a person is receiving alimony in futuro and the alimony recipient lives with a third person, a rebuttable presumption is raised that:

(i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or

(ii) The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse.

She argued that based on this statute, there should have only been a rebuttable presumption that she no longer needed the support.  Wife argued that she should have been given the opportunity to show that her mother was not contributing to her support, and she still needed the alimony.

Which rules: contract language or state law?

A marital dissolution agreement is a contract between the parties in a divorce.  Courts are required to interpret these agreements as if they were any other contract, and when the terms are unambiguous the court will enforce the terms as written.  Within certain limits, the parties to a divorce are free to be creative when determining how, when, and how much alimony will be paid.

The Court compared this case to an earlier case concerning the payment and termination of alimony.  In that case, the court said:

In this particular case, we find T.C.A. § 36-5-101(a)(3)(A) and (B) inapplicable. This is a case of contract interpretation. Our review is governed by the plain language of the parties’ MDA. The MDA does not reference, cite, or incorporate this statute with regard to suspension or termination of Husband’s alimony obligations. Rather, the MDA explicitly provides for the termination of these obligations upon Wife’s death, remarriage, cohabitation with an unrelated male, her becoming qualified for receipt of Social Security benefits, or her reaching age 65, “whichever occurs first.”  …

We further note that the parties freely chose to include in the MDA, as a condition for termination of alimony in futuro, Wife’s “cohabit[ation] with a man not related to her.” (emphasis added). If it was truly the intention of the parties to premise termination of Husband’s alimony payments upon Wife’s receipt of financial assistance from a cohabitor, we find no reason for the parties’ to elect to explicitly terminate alimony upon cohabitation with an unrelated male, and not upon cohabitation with any third party, such as family members or girlfriends. That said, we find that the parties explicitly contracted for the termination of Husband’s alimony obligations in the event Wife cohabits with an unrelated male, regardless of whether said male was providing Wife with financial assistance or support.


Marital dissolution agreements have to be written carefully.  In this case, had the parties not included any of their own terms related to the termination of the wife’s alimony, the statute might have been some help to the wife.  Perhaps more thought should have been put into who (other than the wife’s son) might eventually come to live in the wife’s home.  Perhaps excluding everyone except the son was intentional.

Either way, cases like this one demonstrate that the advice of an experienced and thorough attorney is critical in avoiding unintentional consequences later on.  If you are involved in a case involving alimony, or any other family law matter, please contact me to find out how I can help you.