Ex-Husband Not Entitled to Cut Off Alimony, Cohabitation Ended Prior to Filing Petition

Tennessee alimony modification and cohabitation case summary.

Sara Beth Schwab v. Alfred C. Schwab, III

The girlfriend of the parties’ adult son had lived in the household for about five months. She had moved out before the petition was filed.

The husband and wife in this Williamson County, Tennessee, case were divorced in 2018.  The entered into a marital dissolution agreement under which the husband was to pay alimony, which would end upon the wife’s cohabitation with someone to whom she was not related by blood.

About 18 months later, the husband made a petition to terminate alimony, on the ground that the girlfriend of the parties’ adult son had lived in the household for about five months.  She had moved out before the petition was filed.

The wife argued that the provision in the agreement did not apply, because it also cited the relevant Tennessee statute.  She cited a number of cases holding that the living situation at time of trial must be considered, and that the girlfriend had already moved out.

The trial court agreed with the wife, and the husband appealed to the Tennessee Court of Appeals, which first tackled the issue of how the citation to the statute in the agreement should be handled.

The appeals court concluded that the inclusion of this phrase meant that the case needed to be decided under that statute, and not just by applying the language of the agreement in the abstract.  And it cited a 2015 case which held that the cohabitation must be taking place at the time the petition is filed.  In this case, the son’s girlfriend had moved out prior to the filing.  Therefore, under the statute, cohabitation did not cause the alimony to terminate.

Both parties also asked the appeals court for their attorney fees.  The marital termination agreement provided that a successful party would be entitled to their fees, and the appeals court held that the wife was entitled to fees under this provision.  For that reason, the Court of Appeals remanded the case to award the wife her attorney’s fees, both for the trial and the appeal.  In all other respects, the Court of Appeals affirmed.

No. M2022-00590-COA-R3-CV (Tenn. Ct. App. Dec. 1, 2023).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Alimony Modification in Tennessee Law | How to Modify Alimony and our video, How is alimony decided in Tennessee?