Yes. Divorcing spouses in Georgia can give up the right to modify alimony for cohabitation, and a waiver that cites OCGA 19-6-19 as a whole gives it up even if it never mentions cohabitation.
Waiver Is Allowed
In Daniel v. Daniel, 250 Ga. 849 (1983), a settlement agreement waived “forever their right to petition for any modification of past, present, or future alimony payments.” When the former husband later petitioned under the live-in-lover law, he argued the waiver offended Georgia’s policy favoring marriage. The Georgia Supreme Court enforced it: “Constitutional rights may be waived, as may rights created by statute.” Spouses may also waive modification for financial change and “preserve the right to modify alimony in the event of voluntary cohabitation in a meretricious relationship.”
The Words Have to Be Clear
Georgia enforces a waiver of alimony modification only in “very clear waiver language which refers to the right of modification.” Varn v. Varn, 242 Ga. 309 (1978). That general rule has its own post. For cohabitation, the question is whether the words reach subsection (b). In Carlos v. Lane, 275 Ga. 674 (2002), the agreement waived modification “based upon a change in the income or financial status of either party,” adding that the rights waived “shall include those rights set out in OCGA ยง 19-6-19, et seq.” A divided Supreme Court held the citation covered the whole statute: “Had the parties intended to exclude subsection (b) from the waiver provision, they could have specifically done so.” The husband’s cohabitation petition was dismissed.
A Right That Did Not Exist Yet
In Hathcock v. Hathcock, 246 Ga. 233 (1980), a 1975 agreement waived all future modification, but the right to modify for cohabitation, “having come into existence in 1977,” was not a known right in 1975 and so was not waived.
What cohabitation means when your own agreement uses the word is covered in our post on defining cohabitation in your alimony agreement.
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