Alimony (also called spousal support) is a court-ordered payment from one ex-spouse to the other. The purpose of alimony is to ensure that each spouse can meet financial needs during and after the divorce process. Unless the spouses agree otherwise, the judge will determine if alimony is appropriate and, if so, will decide the amount, frequency, and duration of support.
There are several types of alimony, but each state's alimony awards vary. Typically, needy spouses can request any of the following types of support:
Depending on your case's circumstances, the judge may award periodic (monthly) payments, lump-sum payments, or payments through property exchange. The judge will explain the terms of alimony in your final divorce decree, including the end date.
If your circumstances change before the ordered end date in your court order, you can request a formal review by the court. The legal requirements to modify alimony will depend on your state and your specific divorce decree. For example, if you agreed that your alimony award was non-modifiable, even a significant income change won't be enough to allow the judge to change the order.
Alimony usually ends if the receiving spouse remarries, unless there's a written agreement or court order to the contrary. However, judges in some states have the discretion to continue alimony even after the spouse receiving it remarries—unless your written settlement agreement specifies that payment will stop if one of you remarries.
Typically, the paying spouse's marital status doesn't affect alimony, even if it involves supporting additional children. In most cases, it makes sense for support to end if the supported spouse remarries and no longer needs financial assistance. But it's not always that easy. If your final divorce order is silent on what should happen if the supported spouse remarries, state law will control. Each state has requirements for terminating or modifying alimony, so it's important to check your alimony agreement and final court order and your state-specific laws before rushing to court after discovering that your spouse remarried.
For example, in Arizona, a paying spouse's alimony obligation ends when the recipient remarries, but not until the paying spouse files a formal motion to terminate payments with the court. (Ariz. Rev. Stat. Ann. § 25-327 (B).) On the other hand, Florida residents paying support can immediately stop making alimony payments after the supported spouse remarries. (Fla. Stat. Ann. § 61.08.)
Every state's legal definition of cohabitation varies. States that are silent on a definition agree that cohabitation exists when two people live in the same home in a marriage-like relationship, sharing expenses, without being legally married.
Although most states have clear rules terminating alimony when the supported spouse remarries, what happens if your ex-spouse is in a relationship but not married? The court may still terminate alimony, but it depends on where you live and your case's specific circumstances.
Most states will reduce or terminate alimony if cohabitation significantly decreases the recipient's need for support. For example, suppose you pay monthly alimony to your ex-husband, and he's living with a new partner who is unemployed and broke. In that case, the court may not terminate your obligation to continue supporting your ex-spouse.
Other states will terminate alimony, regardless of whether the cohabitation impacts the recipient's economic status. For example, in one Illinois case, a husband asked the court to end support payments after discovering that his ex-wife was cohabitating with a new partner. The court evaluated several factors when determining whether the cohabitation resulted in a marriage-like relationship, including:
In this particular case, the ex-wife and her new partner spent every day together for over 2 years, spent holidays together, shared finances and meals regularly, and discussed marriage (but decided against it for financial reasons.) The court ruled to terminate the supporting spouse's obligation for alimony, and a higher court agreed. (In re Marriage of Herrin, 262 Ill.App.3d 573.)
In Michigan, the court will terminate support only if the judge believes cohabitation exists after reviewing the totality of the circumstances. In one case, the court laid out various factors to determine cohabitation, including whether the couple lives together, the couple's relationship, and their financial situation. (Smith v. Smith, 278 Mich App 198.)
In those states that do not have laws or court decisions that specifically address the impact cohabitation might have on alimony, it's difficult to predict how a judge will rule. Regardless of state law, if you and your ex-spouse have made an agreement that support or alimony won't be affected by the person who receives it living together with someone new, your agreement will stand. And bear in mind that the person requesting a change in alimony or support payments is the one who must prove that an ex-spouse's situation has changed significantly.