The Terms of a Marital Dissolution Agreement can Control Your Alimony Award; Even If Recipient Re-Marries

As previously posted about, alimony is money paid to a someone by that party’s former spouse granted by a court upon divorce. In Tennessee, there are four types of alimony a court can award after the divorce occurs, two of which — in solido and in futuro – was examined in Romelio R. Ruiz v. Sheila Lea Ruiz. Another of the four types of alimony awarded in Tennessee, transitional alimony, was examined in Barbara M. Hicks Vick v. Brandon P.Hicks by looking at whether alimony can be changed under a marital dissolution agreement if the recipient of the alimony experiences a lifestyle change by getting re-married.

Transitional alimony is awarded when a court finds that rehabilitation is not required but that the economically disadvantaged spouse needs financial assistance in adjusting to the economic consequences of the divorce. Simply put, this type of alimony aids a person by bridging the gap in the transition to the status of a single person as found in Cheryl L. Montgomery v. Steven Silberman. In contrast to rehabilitative alimony, which is designed to increase an economically disadvantaged spouse’s capacity for self-sufficiency, transitional alimony is designed to aid a spouse who already possesses the capacity for self-sufficiency but needs financial assistance in adjusting to the economic consequences of establishing and maintaining a household without the benefit of the other spouse’s income. As such, transitional alimony is a form of short-term support payable for a definite period of time and may be modified only upon the following circumstances found under T.C.A 36-5-121:

1. The parties agree that it may be modified
2. The court provides for modification in the divorce decree
3. The recipient spouse resides with a third person following the divorce and the third person is contributing to the support of the recipient spouse

In Barbara M. Hicks v. Brandon V. Hicks, upon divorce the parties entered into a written Marital Dissolution Agreement (MDA) whereby it contained an alimony provision under which the Husband agreed to pay the Wife transitional alimony for sixty months following the granting of the divorce. The alimony provision of the MDA specifically stated that “the alimony shall not be modifiable by either party.”

The Wife subsequently re-marries after the Hicks’ divorce but within the sixty month transitional alimony period. Upon his ex-wife’s remarriage, the Husband filed a petition with a trial court for relief by ending his transitional alimony obligation. The Wife responded by asking the trial court to dismiss her ex-husband’s petition citing the agreement that was established in the parties’ MDA provided that the Husband’s alimony obligation was not subject to modification. The trial court held a hearing on the Wife’s motion and dismissed the Husband’s petition stating it was unable to modify the final decree and terminate the Husband’s transitional alimony obligation due to the non-modification clause that accompanied the MDA’s alimony provision. The Husband appealed to the Court of Appeals of Tennessee claiming the trial court erred in granting the Wife’s motion to dismiss.

In rendering its decision, the Appellate Court took into consideration the statute under T.C.A 36-5-121 whereby transitional alimony may be modified if the recipient resides with a third person following the divorce and is contributing to the support of the recipient spouse. However, the Court decided the provision in the party’s Marital Dissolution Agreement stating the alimony may not be modified carries heavier weight by virtue of it being contractual. The Court stated “to adopt Husband’s argument and disregard the non-modification language in the parties’ MDA would rid that language of any meaning or effect, contravening elementary contract interpretation principles.”

If you are considering divorce, the key to realizing an equitable outcome is retaining the services of an an experienced, competent legal professional who understands the binding nature of a written document. Contact attorney Jim Widrig or any of the attorneys at Widrig Law PLLC to schedule a consultation.