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THE NEW ALIMONY LAW DOES NOT APPLY TO ALL SITUATIONS

It is very important to remember if you are faced with a motion to end your alimony after you fought off a similar motion before the new law was passed, the law was not intended to be retroactive.

The courts have been flooded with motions to terminate alimony based on the revisions to the statute enacted in 2014. The bill adopting the revisions says:

This Act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into:

a. a final judgment of divorce or dissolution;

b. a final order that has concluded post-judgment litigation; or

c. any enforceable written agreement between the parties.

[L. 2014, c. 42, § 2.]

This statement signals the legislative recognition of the need to uphold prior agreements executed or final orders filed before the adoption of the statutory amendments.

The new statute only allows a judge to terminate or suspend alimony based on cohabitation that has not been litigated previously. But many who pay alimony are filing motions where they previously filed a motion based on the same cohabitation facts and the court already made a decision. Those facts cannot be re-litigated.

As Appellate Court Judge Lihotz wrote in Spangenbery v. Kolakowski: "[b]ecause the post-judgment order became final before the statutory amendments effective date, the new cohabitation provisions do not apply or otherwise impact the alimony determination". The Appellate Court upheld the trial judge's determination to modify alimony based on the old statute and alimony was not terminated.

If you are faced with this situation, Judge Lihotz's opinion should avoid the cost related to a trial to decide the issue. Your attorney should cite to this Appellate Court decision and the trial judge should deny a motion to terminate alimony based solely on the new statute. Otherwise, the judge may schedule a trial to decide whether cohabitation is taking place and whether alimony payments should be stopped.

For answers on your Alimony questions, contact us today.

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