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Law Establishing that Cohabitation Terminates Alimony Does Not Apply Retroactively

Under Arkansas law, a party’s liability for making alimony payments terminates if the party who is receiving the alimony payments begins living full time with another person in an intimate, cohabitating relationship. This law came into effect on August 16, 2013.

In a recent Arkansas Supreme Court case, Mason v. Mason, the ex-husband was ordered to pay his ex-wife $3,500.00 per month for a period of thirty-six months. Mason v. Mason, 2017 Ark. 225 at 2. After thirty-six months had passed, he was then ordered to pay her $1,500.00 per month for a period of sixty months. Id. The parties’ decree was finalized and entered in August of 2011. Id.

In February of 2014, the ex-wife filed a motion with the court seeking to have her alimony payments increased. Id. at 3. The ex-husband countered this motion by requesting the court to altogether terminate his duty to make the alimony payments because his ex-wife was cohabitating with her boyfriend, and under the law in Arkansas, that results in an automatic termination of his alimony liability. Id. The ex-wife responded to this argument, claiming that the Court could not apply the automatic-termination of alimony statute, which came in effect in August 2013, to the parties’ 2011 divorce decree because to do so would result in a wrongful retroactive application of the law. Mason v. Mason, 2017 Ark. 225 at 3.

The trial court found in the ex-husband’s favor and ruled that applying the automatic-termination of alimony statue in this case would not result in retroactive application because it would only affect future alimony payments. Id. at 4. The ex-wife appealed this ruling. Id.

The Arkansas Supreme Court ruled that the automatic-termination statute could not be applied to alimony awarded to a party prior to August 16, 2013 because the statute in question does not expressly declare nor does it necessarily imply legislative intent for retroactive application. Id. The Court held that “[i]n the absence of such legislative intent, we have observed a strict rule of construction against retroactive operation and indulge in the presumption that the legislature intended statutes, or amendments thereof, to operate prospectively only.” Id.

It should be noted that the Court, in its opinion, hints that an analysis of another argument could have resulted in the termination of the alimony payments. Id. The Court explains that “rather than analyzing for a change in circumstances that would cause [the trial court] to use its sound discretion to terminate alimony,” the ruling from below was solely based on language contained within the automatic-termination statute. Mason v. Mason, 2017 Ark. 225 at 4. Alimony awards are based on one party’s ability to pay support versus the other’s party need to receive support. If the ex-wife’s need for support had in some manner decreased since moving in with her boyfriend, the trial court could have used its discretion to terminate or decrease the alimony payments based on that reasoning.

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