Pfeifer contends that the automatic termination of a payor's maintenance obligation upon the payee's remarriage is improper for two reasons. First, she contends that the remarriage may be invalid. Relying on Johnston v. Johnston, 3 Kan. App. 2d 208, 592 P.2d 132 (1979), Pfeifer points out that a marriage license alone is not enough to prove that a payee is validly remarried. The payor's maintenance obligation is not necessarily terminated upon the payee's apparent remarriage.
Thus, states that have adopted the void/voidable approach find that since a void marriage never existed, the payor spouse is not relieved of his periodic alimony obligation. See Broadus v. Broadus, 361 So.2d 582, 585 (Ala.Civ.App. 1978); Reese v. Reese, 192 So.2d 1, 2 (Fla. 1966); Johnstonv. Johnston, 592 P.2d 132, 135 (Kan. 1979); Watts v. Watts, 547 N.W.2d 466, 470 (Neb. 1996); Brewer v. Miller, 673 S.W.2d 530, 532 (Tenn.App. 1984). A voidable marriage is legally valid until an annulment is granted, and these jurisdictions hold that the prior periodic alimony obligation is terminated upon remarriage.
In other jurisdictions, however, it is well-settled that the annulment of a marriage automatically reinstates any prior obligation for maintenance or alimony. See Johnston v. Johnston (1979), 3 Kan. App. 2d 208, 592 P.2d 132; Sutton v. Leib (7th Cir. 1952), 199 F.2d 163; Boiteau v. Boiteau (1948), 227 Minn. 26, 33 N.W.2d 703. While there is no consensus among the various jurisdictions as to the effect of an annulment or decree of invalidity on a prior spouse's obligation to pay alimony or maintenance, the underlying basis for the courts' decisions to terminate or reinstate the obligation appears to be the same: equity. After examining the basis for the other courts' decisions, the Utah Supreme Court in Ferguson v. Ferguson (Utah 1977), 564 P.2d 1380, recognized the anomaly of a strict "all or nothing" rule and adopted a flexible rule which neither automatically restores nor automatically terminates a prior obligation for alimony or maintenance.
Under this approach, a void marriage is void ab initio and by definition, is no marriage at all. SeeReese v.Reese, 192 So.2d 1, 2 (Fla. 1966); Johnston v. Johnston, 592 P.2d 132, 135 (Kan.Ct.App. 1979); Watts v. Watts, 547 N.W.2d 466, 470 (Neb. 1996);Brewer v. Miller, 673 S.W.2d 530, 532 (Tenn.Ct.App. 1984). "[E]ven if a marriage ceremony takes place, the marriage may nevertheless be declared void ab initio if the parties could not validly enter into the status of matrimony."
Some courts have held that a marriage which is void ab initio has no legal effect and annullment of such a marriage will serve to revive the obligations owed by a former spouse. Johnston v. Johnston, 3 Kan. App. 2d 208, 592 P.2d 132 (1979); Broadus v. Broadus, 361 So.2d 582 (Ala. Civ. App. 1978). Others have ruled that any remarriage terminates the right to alimony or support even where the second marriage is void. Torgan v. Torgan, 159 Colo. 93, 410 P.2d 167 (1966); MacPherson v. MacPherson, supra. Still others have held that annullment of a marriage which is not void but simply voidable will revive the former husband's support obligations.