Should a Separation Agreement containing a non-modifiable alimony obligation be enforced upon the parties’ divorce?

Tennessee law allows a party to seek a legal separation instead of a divorce. In much the same way as a divorce, the party seeking the legal separation will set forth grounds for a legal separation. The court can resolve the same type of matters as it would in a divorce proceeding including a parenting plan, division of property and debts, and alimony and support.

Frequently, in a legal separation, the parties reach an agreement which is memorialized in writing in a Legal Separation Agreement. After the parties have been legal separated for a period of two or more years, a party may seek an absolute divorce. At that time, the court granting the divorce is required to make a final and complete adjudication of the support and property rights of the parties. Tennessee Code Annotated section 36-4-102(b).

In the recent case of Pless v. Pless, the Court of Appeals addressed whether the parties’ Legal Separation agreement would be binding on the parties at the time of their divorce. The Separation Agreement provided that Husband would pay $2,000 per month to Wife as alimony in futuro which would not be modifiable and would terminate only upon wife’s death. The terms of the parties’ Separation Agreement did not address a future divorce or what would occur with the alimony provision if either spouse wanted a divorce.

Notably, the Court found that a legal separation is considered a temporary arrangement to provide for the needs of the parties; as such, a court should re-examine the support and property rights of the parties in light of a permanent dissolution. In other words, do not expect that the terms of a legal separation agreement will be absolute and hold up in a divorce proceeding.

The Court looked at two issues to determine if a separation agreement would be conclusive as to the property and alimony issues for a future divorce action:

• Whether the agreement was intended to be a final adjudication of the parties’ rights upon divorce
• Whether a full hearing was conducted on the fairness of the hearing in light of the parties’ property and income, and if so, whether the same trial judge that entered the separation order presides over the divorce.

The above requirements will not hold up in many cases since often parties in a legal separation never have a contested hearing before the judge and resolve the issues themselves. It remains to be seen if the court would find language of the parties’ intention that a support obligation continue past the time of a legal separation to be binding on the parties in a divorce proceeding.