Divorce trial courts need the discretion to make modification or termination of spousal support alimony effective as of the date that the motion to modify or terminate the alimony was filed. Presently, appellate courts interpret Okla. Stat. tit. 43 § 134(D) to mean that alimony may only be modified prospectively from the date of entry of an order modifying alimony, that is, after litigation of the motion and trial on the merits of the motion, which may take many months. The present wording of the statute and judicial interpretations of the statute incentivize lots of bad behavior:
1. The statute presently encourages cohabitation without remarriage by spousal support recipients, as the statute makes termination of support alimony presumptive upon remarriage of the spousal support recipient. Why remarry if you can secretly cohabit and keep receiving alimony?
2. If a spousal support obligor (payor) believes that he has good cause to modify spousal support due to cohabitation by the spousal support recipient, the obligor has the burden of proof not only to show the cohabitation, but, once he proves it, he must also show the trial court that, consequently, the recipient’s need for spousal support has decreased. The statute thus incentivizes discovery game-playing and bad behavior in litigation by the spousal support recipient. The spousal support recipient has no incentive to quickly respond to discovery requests or to move to trial, but she has plenty of incentive to delay progress in the case.
3. In the discovery process, a spousal support recipient who is actually cohabiting with a new romantic partner but denies cohabitation will likely not produce information in discovery concerning her “new” or current expenses or any evidence concerning her need for alimony because she has not conceded that the triggering event, the cohabitation, has occurred. This means that at trial, the moving party (the spousal support obligor) may prove, over the objection and obstruction of the spousal support recipient, that the recipient is cohabiting, yet obtain no relief, as he lacks evidence concerning the reduction in need that should have been provided in discovery.
All this could be easily addressed and fixed by an amendment to part D. of Okla. Stat. tit. 43 § 134, giving the trial court discretion (rather than a mandate) to determine that any change in circumstances in alimony need is effective as early as when the moving party filed its motion to modify or terminate support alimony. Each side would have an even playing field in pretrial proceedings, and the trial court would have more latitude and discretion to ensure justice is done.