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Wife’s Cohabitation Not a Basis for Modification Due to Alimony Agreement’s Narrow Language

pen.jpgA husband’s recent failed attempt to modify his alimony obligation serves as a cautionary tale for all divorcing spouses as they consider signing agreements regarding alimony. The husband sought modification because the wife had been cohabitating with a man for two years. The 4th District Court of Appeal ruled that this was not grounds for modification, however, since the couple’s alimony agreement listed remarriage, but not cohabitation, as a valid basis for modifying the husband’s obligation.

When Husband and Wife divorced in 2007 after 17 years of marriage, they reached a marital settlement agreement that included the terms of the husband’s alimony obligation to the wife. The couple agreed that the husband would pay the wife $2,000 per month until he turned 62. The only grounds for modifying that obligation were loss of income due to the failure of the husband’s business, loss of income due to a decline in the husband’s health, the wife’s remarriage, or the death of either spouse.

In 2012, the husband went to court asking the judge to modify or terminate his alimony obligation. The wife, the husband alleged, had been living with a man in a “supportive” relationship that involved sharing wealth and assets for at least two years. The wife asked the judge to throw out the case, arguing that her non-marital relationship did not trigger any of the modification grounds listed in the settlement agreement.

The trial court agreed with the wife. The court reasoned that both spouses knew that generally cohabitation is a basis for modifying alimony. By failing to include cohabitation on the list of triggers allowing the husband to reduce or eliminate his alimony payments, the husband essentially contracted away his right to seek modification if the wife entered a cohabitating relationship.

On appeal, the husband attempted to argue that language in the agreement stating the alimony agreement represented an amount “sufficient and adequate for the former wife based upon her then current circumstances, needs, and earning capacity” indicated that any change of circumstances, such as cohabitation, gave the husband a right to request modification.

The appeals court did not agree. The court explained that divorcing spouses are free to contract away or waive certain rights or obligations in marital settlement agreements with regard to alimony. The spouses can create such a waiver either by the terms they include in the agreement or by what they leave out. The court reiterated a ruling handed down last year in a similar case, when that court stated that cohabitation “as a possible termination event was something the parties could have contemplated at the time they entered into their agreement. They chose not to do so.” When they failed to add a cohabitation term to the agreement, that meant the husband waived his right to use cohabitation as a ground for modification.

Reaching a mutually acceptable marital settlement agreement is often preferable to a contested divorce. However, in these cases, it is important that each spouse understand all the implications of the agreement, especially if he or she is agreeing to a financial obligation, such as the payment of alimony. For careful and determined representation regarding your divorce, talk to the South Florida family law attorneys of Sandy T. Fox, P.A. Our attorneys can help you ensure that your marital settlement agreement adequately protects you, regardless of what the future holds.

Contact us online or by calling (800) 596-0579 to schedule your confidential consultation.

More Blog Posts:

Ex-Wife’s Cohabitation Arrangement Warrants Reduction in Alimony, Fort Lauderdale Divorce Lawyer Blog, Nov. 13, 2013
Can You Modify Alimony in Florida?, Fort Lauderdale Divorce Lawyer Blog, Aug. 28, 2013