Alimony in Tennessee Divorce Law

Frequently Asked Questions

From a divorce lawyer serving Memphis and the surrounding area in Tennessee

1. How does alimony work? Alimony is a payment from one spouse to another for financial support. There are different reasons a court may order alimony to be paid. First, as in the case of a longer marriage, alimony may enable the spouse receiving the support to maintain a lifestyle close to the one he or she enjoyed during the marriage. This is called alimony in futuro, or periodic alimony. Another reason is to help a spouse become rehabilitated, possibly assisting a spouse to return to school to increase his or her earning capacity. This is called rehabilitative alimony. A third and new type of alimony is called transitional. Transitional alimony is awarded when the court finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce. Finally, the court may allow one spouse to pay money over time to make up for an imbalance in property division. This is called alimony in solido, or lump sum alimony. There are no exact formulas for determining the type, length, and amount of payments. If alimony is not received at the time of the divorce, it cannot be obtained later.

2. I read that there are new changes to Tennessee alimony law. What are the major changes? In 2003, the Tennessee Legislature enacted several important changes in alimony law as proposed and advocated by the Tennessee Bar Association Family Law Section and its Code Commission. A few of the changes were most important.

• The new law created the fourth type of alimony, transitional, which is discussed above.

• At trial, more than one form of alimony can be awarded.

• The law now provides a very strong public policy statement about marriage and the role of the disadvantaged spouse, essentially encouraging judges to award more substantial awards so "that the economically disadvantaged spouse's standard of living after the divorce should be reasonably comparable to the standard of living enjoyed during the marriage or to the post-divorce standard of living expected to be available to the other spouse...."

3. Can you give an example of a short-term marriage? John and Mary, a couple from Cordova, Tennessee, have been married five years. Near the beginning, Mary quit school so John could become a dentist. After finishing dental school, John found a new love and filed for a divorce. Because the marriage was of short duration, a court must first try to put the parties back in the position they were in before the marriage. Obviously, John has benefited from Mary's sacrifice. A court might award Mary rehabilitative alimony for a reasonable time, say three to five years, to help her complete her college education.

4. Can you give an example of a long-term marriage? Steve and Jenny, a couple from Bartlett, Tennessee, have been married for twenty-five years and are getting divorced. Jenny started and owns an accounting firm earning well into six figures. Steve teaches music at the local high school and was the primary caregiver for the children, now grown. It may not be feasible for Steve to start over by going back to school. A court might award Steve alimony in futuro. Steve will receive a check until Jenny dies, or Steve dies or remarries or receives support from a live-in relationship.

5. What about alimony in solido? Brad and Susan are both stock brokers who make about the same income and have no children. Their largest asset is their home, which has equity of $80,000.00. Unfortunately, neither have enough cash to pay the other for his or her share of the equity. Brad might offer to pay alimony in solido each month until the $40,000.00 is paid so that he may keep the house. If Susan accepts this type of alimony, she cannot petition the court to increase the amount after the divorce because alimony in solido cannot be modified.

6. Can you tell me more about transitional alimony? Transitional alimony is new in Tennessee. While all forms of alimony involves a sum of money payable by one party to the other party, the most important issue in awarding alimony is the length of time during which the alimony should be paid. Transitional alimony lasts only for a certain determinate period of time and will otherwise terminate upon the death of the recipient or payor unless otherwise specifically stated in the divorce decree, such as a provision that the alimony will terminate upon remarriage of the recipient. Transitional alimony cannot be modified unless the parties otherwise agree in an agreement incorporated into the initial order of divorce. For many, this will be an attractive option because of its certainty and predictability. Check with your tax advisor to discuss whether or not this new form of alimony is deductible by the payor and included as income by the recipient.

7. Can a court award two kinds of alimony at the same time? Yes.

8. What factors does the court consider?

• The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit-sharing or retirement plans and all other sources;

• The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party's earning capacity to a reasonable level;

• The duration of the marriage;

• The age and mental condition of each party;

• The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic, debilitating disease;

• The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage;

• The separate assets of each party, both real and personal, tangible and intangible;

• Marital property division;

• The standard of living of the parties established during the marriage;

• The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;

• The relative fault (who is more to blame) of the parties in cases where the court, in its discretion, deems it appropriate to do so; and

• Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties. So basically, everything. Appellate courts often say that need and ability to pay are the two most basic and important factors. (Do not rule out relative fault of the parties as a very important factor.)

9. Can a spouse be awarded temporary alimony during the pendency of the divorce proceeding? While the divorce is proceeding, temporary alimony may be awarded. This is accomplished by a hearing on a motion for pendente lite support. Child support and attorney's fees may also be determined. The temporary order ends when the final judgment for divorce is entered.

10. How is the amount of temporary alimony determined? With regard to a temporary alimony award, there is no precise formula. The court will use its discretion, considering the ability of one party to pay and the present needs of the party to whom the temporary alimony is to be paid. The court will look closely at the standard of living of the parties at the time of separation.

11. Can alimony be modified or terminated? It depends. In a marital dissolution agreement, the parties may agree to make alimony non-modifiable, or modifiable under certain specified circumstances. If the court orders alimony, it depends on the type of alimony awarded and other terms that the court spells out. In order for alimony in futuro to be modified, the court will require a material change of circumstances. If the person receiving support lives with a "friend," in certain situations this might constitute a change of circumstances. Be aware that these terms can affect the tax treatment of alimony.

13. Who can tell me how much I have to pay or how much I should receive? In either a negotiation for a divorce settlement or at trial, the main disputes include the amount of alimony and length of time payments are to be made. Experienced attorneys have different opinions about alimony. In deciding how to advise a particular client, attorneys consider the factors listed above, prior experience with the judge and the other attorney, and case law. "Case law" is legal jargon used to describe the body of appellate opinions. Appellate opinions result from prior cases having gone to trial and one party, being dissatisfied with the result for any number of reasons, appealing the case. The Court of Appeals rules on the issues raised by the appealing party, sometimes reversing the ruling of the trial judge, and issues a written opinion. Anywhere from three to ten alimony-related appellate opinions are issued each month by the Tennessee Court of Appeals. The Supreme Court of Tennessee may issue an important opinion on alimony once every few years. Often, when a dispute arises over what constitutes a fair amount of alimony, attorneys research case law and look for a case which closely mirrors the case at issue to help advocate a position. Even though there have been many cases decided by the appellate courts, most legal situations are unique.