My fiance is currently paying alimony to his ex-wife, even though she’s been living with her boyfriend for over six months now. It’s my understanding that cohabitation is grounds for termination of alimony. Is that true? Their divorce was settled out of court, and their contract does not mention anything about future cohabitation with others.
In addition, the alimony agreed to during the divorce settlement is now putting my fiance (and me) in a financially challenging situation. She gets half of his paycheck and a newer, fully paid-off car, while he’s stuck paying a promissory note and legal fees associated with the sale of their house (which resulted in a short sale), and drives a beat up old car that’s going to break down any day. At the very least, can he re-negotiate the amount of alimony?
What should my fiance do?
Cohabitation is grounds to terminate alimony, unless the agreement does not provide for cohabitation to terminate payments.
Alimony in an agreement is not modifiable unless the payee agrees to a new amount.
Since my fiance’s divorce contract says nothing about cohabilitation, does that mean it is not a reason for alimony payments to terminate? What is the default if the contract doesn’t specify?
The contract will be construed in a court as it is written, meaning that if cohabitation is not listed as a terminating factor, the court will not insert it as one.
Could you please clarify that even further? I’m not sure what you mean. If cohabitation is NOT written in the contract as a reason for alimony to terminate, are you saying that the court can insert it as one now? Would his ex need to agree to these terms, or can we legally terminate alimony based on her new cohabitation even though that provision is not currently specified in the contract?
My apologies, I left out the word not. If cohabitation is not listed in the agreement as a terminating factor, the court will NOT insert it as one
Is there anything we can do then? My fiance can’t afford to pay her and it hardly seems fair considering it’s HIS money and she’s already being supported by someone else. Is there any legal action we can take to have alimony reduced or terminated? What if he has to file for bankruptcy?
He is contractually obligated to pay the alimony pursuant to the agreement. If he fails to pay she may sue him for breach of contract, and he could potentially be on the hook for her attorney’s fees as well. Filing for bankruptcy could modify the alimony, but there is no guarantee.
My fiance’s separation agreement does state that alimony would cease if his ex gets remarried. Does NC recognize cohabitation to be the same as a marriage after a certain period of time? If not, what’s to prevent her from living with her boyfriend forever without ever getting married in order to continue receiving alimony?
North Carolina does not recognize common law marriage. There is nothing to prevent her from continuing to live with her boyfriend and receiving alimony until the termination date in the agreement.
Does it change anything to know that she now lives in SC? Is common law marriage recognized there? Does it matter since the agreement was signed in NC?
NC does recognize common law marriage from other states as part of full faith and credit, when those two parties are in NC and subject to their jurisdiction for purposes of divorce however in this context the court will not adjudicate a common law marriage from another state to end alimony in another case.
We sent her an e-mail stating that we’d like to change the agreement to reduce the amount of alimony and limit it to five years. She responded with “If you need to amend anything, just have the proper documents drawn up.” How do we go about amending the agreement? Is email sufficient or do we need to have a legal document prepared, notorized and signed?
You may draft an amendment to the original agreement which changes the alimony amount, it must be signed an notarized by both parties.
His ex just informed us that their separation agreement was filed with the court as a part of the divorce. Does that mean we need to go through the court system to modify the terms of their separation agreement? How do we start the process?
If the agreement was incorporated into the divorce decree it is an order of the court, and you may file a motion to modify alimony under the divorce case file number.
Ok. Two questions that come up based on your response:
- Under what circumstances will the court agree that alimony should be modified? What evidence will my fiance need to provide?
- If his ex agrees to reducing alimony outside of court, can we still prepare an amendment to the original separation agreement ourselves as long as we have it signed and notified?
If alimony is contained in a Court Order the court will hear a motion to modify alimony based on the occurrence of a substantial change in circumstances, ie: job loss or major income reduction.
Alimony outlined in a Separation Agreement is not modifiable and the a petition to modify the same cannot be made. If the payee agrees to enter into a new agreement changing the number an amended agreement will need to be drafted and both parties will need to sign the same before a Notary.
So you’re saying that because alimony in a separation agreement is non-modifiable, my fiance must have a substantial change in circumstance for the court to consider modifying the amount of alimony (ie, we can’t just claim that it’s too expensive)? BUT, if his ex agrees to reducing alimony, we can draft an amendment, have it signed and notarized, and the new amount will be official. Is that right?
Alimony in a separation agreement is non-modifiable, regardless of whether there has been a change in circumstances on the part of either side. The amount can only be changed if the payee agrees to enter into an amended Agreement regarding alimony. If an amendment is signed by all parties before a Notary it will be binding an enforceable.