§ 43-134. Alimony payments - Designation of support and property payments - Termination of support - Cohabitation by former spouse - Modification of support - Active military pay - Disposable retired or retainer military pay.

A.  In any dissolution of marriage decree which provides for periodic alimony payments, the court shall plainly state, at the time of entering the original decree, the dollar amount of all or a portion of each payment which is designated as support and the dollar amount of all or a portion of the payment which is a payment pertaining to a division of property.  The court shall specify in the decree that the payments pertaining to a division of property shall continue until completed.  Payments pertaining to a division of property are irrevocable and not subject to subsequent modification by the court making the award.  An order for the payment of money pursuant to a dissolution of marriage decree, whether designated as support or designated as pertaining to a division of property shall not be a lien against the real property of the person ordered to make such payments unless the court order specifically provides for a lien on real property.  An arrearage in payments of support reduced to a judgment may be a lien against the real property of the person ordered to make such payments.

B.  The court shall also provide in the dissolution of marriage decree that upon the death or remarriage of the recipient, the payments for support, if not already accrued, shall terminate.  The court shall order the judgment for the payment of support to be terminated, and the lien released upon the presentation of proper proof of death of the recipient unless a proper claim is made for any amount of past-due support payments by an executor, administrator, or heir within ninety (90) days from the date of death of the recipient.  Upon proper application the court shall order payment of support terminated and the lien discharged after remarriage of the recipient, unless the recipient can make a proper showing that some amount of support is still needed and that circumstances have not rendered payment of the same inequitable, provided the recipient commences an action for such determination, within ninety (90) days of the date of such remarriage.  Any modification of alimony payments shall be effective upon the date of the filing of the requested modification.

C.  The voluntary cohabitation of a former spouse with a member of the opposite sex shall be a ground to modify provisions of a final judgment or order for alimony as support.  If voluntary cohabitation is alleged in a motion to modify the payment of support, the court shall have jurisdiction to reduce or terminate future support payments upon proof of substantial change of circumstances of either party to the dissolution of marriage relating to need for support or ability to support.  As used in this subsection, the term cohabitation means the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to law, or not necessarily meeting all the standards of a common-law marriage.  The petitioner shall make application for modification and shall follow notification procedures used in other dissolution of marriage decree modification actions.  The court that entered the dissolution of marriage decree shall have jurisdiction over the modification application.

D.  Except as otherwise provided in subsection C of this section, the provisions of any dissolution of marriage decree pertaining to the payment of alimony as support may be modified upon proof of changed circumstances relating to the need for support or ability to support which are substantial and continuing so as to make the terms of the decree unreasonable to either party.  Modification by the court of any dissolution of marriage decree pertaining to the payment of alimony as support, pursuant to the provisions of this subsection, may extend to the terms of the payments and to the total amount awarded; provided however, such modification shall only have prospective application.

E.  In no event shall an award of alimony, whether designated for support or for property division, be based on the servicemember’s portion of any Special Monthly Compensation (SMC) award from the United States Department of Veterans Affairs.

F.  Pursuant to the federal Uniformed Services Former Spouses’ Protection Act, 10 U.S.C., Section 1408, a court may treat disposable retired or retainer pay payable to a military member either as property solely of the member or as property of the member and the spouse of the member.  If a state court determines that the disposable retired or retainer pay of a military member is the sole and separate property of the military member, the court shall submit clear and concise written findings of such determination to be included in the decree or final order.  If a state court determines that the disposable retired or retainer pay of a military member is marital property, the court shall submit clear and concise written findings of such determination to be included in the decree or final order and shall award an amount consistent with the rank, pay grade, and time of service of the member at the date of the filing of the petition, unless the court finds a more equitable date due to the economic separation of the parties.

G.  Unless otherwise agreed to by the parties, any division of an active duty military member's retirement or retainer pay shall use the following language:

"The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying fifty percent (50%) times a fraction, the numerator of which is ____x____ months of marriage during the member's creditable military service, divided by the member's total number of months of creditable military service."

H.  In the case of a member's retiring from reserve duty, unless otherwise agreed by the parties, any division of a reservist's retirement or retainer pay shall use the following language:

"The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying fifty percent (50%) times a fraction, the numerator of which is __X____reserve retirement points earned during the period of the marriage, divided by the member's total number of reserve retirement points earned."

I.  The provisions of subsection D of this section shall have retrospective and prospective application with regards to modifications for the purpose of obtaining support or payments pertaining to a division of property on dissolution of marriage decrees which become final after June 26, 1981.  There shall be a two-year statute of limitations, beginning on the date of the final dissolution of marriage decree, for a party to apply for division of disposable retired or retainer pay.

J.  The provisions of subsections C and D of this section shall have retrospective and prospective application with regards to modifications of the provisions of a final judgment or order for alimony as support, or of a dissolution of marriage decree pertaining to the payment of alimony as support, regardless of the date that the order, judgment, or decree was entered.

Added by Laws 1965, c. 344, § 1.  Amended by Laws 1967, c. 328, § 1; Laws 1968, c. 161, § 1, emerg. eff. April 11, 1968; Laws 1976, c. 61, § 1; Laws 1979, c. 278, § 1; Laws 1983, c. 86, § 1, operative Nov. 1, 1983; Laws 1985, c. 188, § 1, eff. Nov. 1, 1985; Laws 1987, c. 130, § 1, emerg. eff. June 3, 1987.  Renumbered from Title 12, § 1289 by Laws 1989, c. 333, § 1, eff. Nov. 1, 1989.  Amended by Laws 1991, c. 113, § 5, eff. Sept. 1, 1991; Laws 1992, c. 252, § 4, eff. Sept. 1, 1992; Laws 2008, c. 407, § 11, eff. July 1, 2009; Laws 2012, c. 261, § 3, emerg. eff. May 15, 2012; Laws 2012, c. 334, § 2, eff. Nov. 1, 2012.