Alabama Alimony and Lesbian Cohabitation

Alabama statutes make it clear that alimony after divorce stops on the remarriage or cohabitation of the recipient with a member of the opposite sex. Ala. Code §30-2-55. So what happens if the cohabitation is between the recipient and her lesbian partner? The Alabama Court of Civil Appeals considered this issue in J.L.M. v. S.A.K., Case No. 2070641 (Ala. Civ. App. December 19, 2008).

The former husband was required to pay the former wife alimony of $1,000 per month. This case arose on the former husband’s filing of a petition to modify. He sought an end to the alimony payments on the grounds that he was about to lose his job and that the former wife had begun cohabitating in an “immoral sexual” lesbian relationship.

Testimony in the hearing that followed established that the wife was indeed cohabitating with her lesbian partner, that they had an active sexual relationship, and that their relationship had been a motivating factor for the divorce. In its initial ruling, the trial court reduced alimony from $1,000 to $500 per month. The former husband filed a postjudgment motion objecting to the court’s failure to terminate the husband’s alimony obligation completely. The court granted the motion but ordered that alimony would be reinstated if the wife ended her cohabitation. The court also set the case for an additional hearing.

At this second hearing, the former wife, the only witness, testified that she and her partner had separated, with the partner living in Nebraska and the former wife remaining in Alabama. The former wife testified that, although she and her partner no longer lived together, they remained in a committed relationship and talked by telephone. The court reinstated the alimony at $1,000 per month, and the former husband appealed.

The appeals court stated that Ala. Code §30-2-55 “cannot reasonably be read as applying to an ex-spouse receiving alimony who is living openly or cohabiting with a member of the same sex.” The former husband had argued that homosexuality is a crime involving moral turpitude and that it violates public policy to require him to “abet” the former wife’s criminal conduct. The appeals court rejected this argument, stating that alimony is purely statutory and that if the legislature wants to end it on the recipient’s homosexual cohabitation it is free to do so. “No matter the strength of the public policy, this court may not assume the role of the legislature and create laws, even if they would be consistent with that policy.”