How Do I Stop Paying Alimony?

The termination of alimony largely depends on the terms set forth regarding duration, and whether the alimony award is put in an unincorporated separation agreement (contract) or a court order (judgment, consent order, or incorporated separation agreement).

Alimony that is provided for in a court order, whether this is awarded in an order pursuant to trial, a consent order, or a separation agreement that has been approved by the court and incorporated into a divorce decree or other order is court ordered alimony. Thus even if you agree to alimony in a consensual, contractual separation agreement, if that separation agreement is later incorporated and made part of a divorce decree, it transforms from a contract to an order. Court ordered alimony, regardless of the terms of the separation agreement, terminates statutorily upon the death of either the supporting or the dependent spouse, and also upon the remarriage or cohabitation of the dependent spouse. N.C.G.S. 50-16.9(b). So, when there is an order for alimony in place, alimony terminates upon (1)deathof either spouse, (2)remarriageof dependent spouse, OR(3)cohabitationof dependent spouse.

Cohabitation is statutorily defined as … “cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” To determine whether a couple has voluntarily assumed the rights, duties, and obligations of married people, the trial court must consider the totality of the circumstances. The primary policy in making cohabitation, not just remarriage, grounds for termination is the economic impact on the dependent spouse. It would not be fair, in other words, for a dependent spouse to be in and continue in a relationship where he or she may enjoy an economic impact from the relationship (i.e. new romantic interest contributes income) without the status of being married. A supporting spouse cannot automatically cease paying alimony due to the dependent spouse’s cohabitation or remarriage without a court order terminating the alimony.

Examples of when a court has found that NO cohabitation exists:

• While dependent spouse and her boyfriend had an exclusive, monogamous relationship together, and spent almost every night together at boyfriend’s residence, they did not assume the rights and duties of a married couple when they maintained separate homes, neither kept clothes or other personal items at the other’s house, amounts provided to dependent spouse or paid on her behalf by boyfriend were repaid by dependent spouse from her funds, and neither represented that they were married. Additionally, there was a reasonable inference arising from dependent spouse’s planned marriage to her boyfriend, which would terminate four of the five years of alimony that dependent spouse was to receive, that dependent spouse’s cohabitation was not motivated by a desire to continue receiving alimony.Setzler v. Setzler, 781 S.E. 2d64 (N.C. Ct. App. 2015).

• While dependent spouse and her boyfriend engaged in some domestic activities, they did not assume marital rights and duties extending beyond those found in an intimate friendship in that they did incur joint financial obligations, share a home, combine finances, pool resources, or consistently merge their families.Smallwood v. Smallwood, 227 N.C. App. 319, 742 S.E. 2d814 (2013).

• Court found no cohabitation existed when dependent spouse was only involved in a sexual relationship with her boyfriend and occasionally went on trips and dates with him.Oakley v. Oakley, 165 N.C. App. 859, 599 S.E. 2d925 (2004).

• Court found no cohabitation by dependent spouse when no evidence was provided that she lived with her boyfriend “continuously and habitually” and “engaged in voluntary mutual assumption of those marital rights, duties, and obligations usually manifested by married people.” Boyfriend’s overnight visits were sporadic, he did not move his belongings into dependent spouse’s home, he did not contribute financially to dependent spouse’s living expenses, and he maintained a separate residence.Faulkenbury v. Faulkenbury, 195 N.C. App. 459, 673 S.E. 2d168 (2009).

• Court found no cohabitation when parties did not live together continuously or habitually although they had a mostly exclusive sexual relationship for fifteen months. Boyfriend never moved in with dependent spouse and lived with his parents. Boyfriend would stay a maximum of two to three nights per week at dependent spouse’s residence, he would call before coming over, he did not have keys to dependent spouse’s house or car, and he did not receive mail at dependent spouse’s residence.Russo v. Russo, 217 N.C. App. 400, 720 S.E. 2d28 (2011).

• Court found no cohabitation when dependent spouse and boyfriend had a dating and sexual relationship, boyfriend would occasionally help with dependent spouse’s children, they would attend dinners, shop together, attend church, and travel together. Boyfriend also maintained a separate residence, did not keep clothes or toiletries at dependent spouse’s residence, did not receive mail there, did not contribute towards financial and household expenses, and did not maintain financial accounts together.Shaw v. Shaw, 182 N.C. App. 347, 641 S.E. 2d867 (2007).

The courts seem to hold that parties are cohabitating when they are in a (1) mutually exclusive dating and sexual relationship; (2) consistently, if not exclusively spend overnights together, or have a residence together; (3) hold themselves out in the same ways as a married couple would; (4) go on dates, travel together, keep clothes and toiletries at each other’s homes, and provide care (if applicable) for each other’s children; and (5) mix finances and contribute financially to each other, pay bills and contribute to household expenses together, and maintain joint bank accounts.

When, on the other hand, an unincorporated separation agreement is involved, the terms of termination of alimony provided for in the contract dictate. Thus if no term in the unincorporated separation agreement provides for termination of alimony, it may continue indefinitely. A contractual support obligation of alimony in an unincorporated separation agreement, for example, that provided that alimony should be paid to the dependent spouse to support her while she obtained a college degree continued even after the death of the supporting spouse. The death of the supporting spouse did not end his obligation to support the dependent spouse until she graduated from college and his estate was required to provide the alimony payments to the dependent spouse. SeeWhite v. Graham, 72 N.C. App. 436, 325 S.E. 2d497 (1985).

To contrast against court ordered alimony, while cohabitation will result in the termination of a support order entered by a court, either as the result of a trial or by entry of a consent order, cohabitation will not terminate a support obligation arising from an unincorporated separation agreement unless so specified in the contract. SeeJones v. Jones, 144 N.C. App. 595, 548 S.E. 2d565 (2001).

Unless provided otherwise in a separation agreement, however, reconciliation between parties who remain married may terminate an obligation to pay alimony, even if contracted for in an unincorporated separation agreement. Reconciliation, or the resumption of marital relations, is defined as the voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. N.C.G.S. 52-10.2. To reconcile, there must typically be substantial objective indicia of cohabitation. Reconciliation did not occur, for example, in a case where the husband and wife spend four hours a day, six days per week together, in the former marital home, having dinner together, visiting with the minor children, and having occasional sex together because the husband and wife maintained separate residences, did not share chores or household responsibilities, did not hold themselves out as husband and wife, did not indicate to others that their problems had been resolved, and did not indicate that they desired to terminate their separation.Fletcher v. Fletcher, 123 N.C. App. 744, 474 S.E. 2d802 (1996). The Court of Appeals has held, on the other hand, that reconciliation has occurred when the husband and wife lived together for four months following the execution of a separation agreement, had sexual relations, filed a joint tax return, and held themselves out as husband and wife. SeeSchultz v. Schultz, 107 N.C. App. 366, 420 S.E.2d186 (1992).

In a nutshell, if alimony is court order, it will terminate upon (1) death of either party, (2) remarriage of dependent spouse, or (3) cohabitation of dependent spouse. If alimony is in an unincorporated separation agreement, it will terminate upon the terms of that contract, if ever; unless the parties remain married and resume marital relations.