Tennessee Divorce Attorney Blog

The amount and extent to which alimony will be granted in a divorce will depend upon a variety of factors. For example, in Mays v. Mays, No. M2010-02479-COA-R3-CV (Tenn. Ct. App. April 23, 2012), the Tennessee Court of Appeals explained for Tennessee Divorce Attorneys what factors might be relevant in determining whether a spouse should receive alimony in futuro rather than rehabilitative or transitional alimony.
Husband and Wife were married for twelve years with one minor child before they divorced. During the divorce proceedings, the trial court ruled that the Husband had to pay $225 per week in child support, $17,727.30 as alimony in solido (in whole) and $225 per week as alimony in futuro (in the future). The husband appealed the trial court's decision, claiming that the trial court erred when it held that needed to pay alimony in futuro to his ex-wife.

Under T.C.A. § 36-5-121(f)(1), alimony in futuro is granted when there is a "relative economic disadvantage and that rehabilitation is not feasible, meaning that the disadvantaged spouse is unable to achieve ... an earning capacity that will permit the spouse's standard of living after the divorce to be reasonably comparable ... to the post divorce standard of living expected to be available to the other spouse." While trial courts have broad discretion to determine the nature, amount, and duration of spousal support, under T.C.A. § 36-5-121(i), that determination requires a balancing of factors based on the facts and circumstances of each case. Two of the most important factors are the obligor's ability to pay and the disadvantaged spouse's need.

In this particular case, the Appellate Court held that alimony in futuro was improper. During the divorce proceedings, the Wife testified on the stand that she desired to go back to school to pursue a career as a dental hygienist. Wife's education history, prior employment, age and desire to further her education showed that the trial court's ruling that she could not be rehabilitated was in error. In light of the statutory preference in Tennessee for rehabilitative alimony, the Appellate Court vacated the award of in futuro support. However, because Wife's need and Husband's ability to pay were clearly present, the issue was remanded to the trial court or reconsideration of the type, amount and duration of the alimony award. Additional direction was given by the Appellate Court to the trial court to consider the Wife's educational objectives and to award alimony accordingly. The appellate decision also gave the trial court the option of concurrently awarding some alimony in futuro only if the trial court finds Wife can only be partially rehabilitated.

The case of Williams v. Williams from the Tennessee Court of Appeals, No. E2011-00768-COA-R3-CV, filed on March 2, 20120 demonstrates for Tennessee divorce attorneys when an alimony obligation is ripe for termination. The parties divorced in 2004, and on appeal Wife was awarded $750 of alimony in futuro per month. Both parties were employed at the time but Husband earned approximately $40,000 more per year than Wife. In 2010, Husband petitioned to modify the alimony due to Wife's promotion. At the hearing, Wife stated her income increased from $31,000 in 2004 to $46,000 in 2009 and then to $64,000 in 2010. She also had earned a master's degree since the divorce. Wife also testified that she had additional legal bills, a second mortgage and student loan expenses. Husband testified his income had also increased, from $75,000 to $101,000. The trial court modified the alimony from $750 per month to $500 per month and both parties appealed.

Modification of spousal support depends upon whether there was a substantial and material change since the initial order of support occurred. Here, the change is Wife's increased income. The Appellate Court found this to be substantial because it affected her need for the alimony. Even though it may have been foreseeable that Wife would get standard of living wage increases, here Wife went back to school and thereby raised her income by over $30,000 per year. This was deemed not foreseeable because the trial court originally did not award rehabilitative alimony. Having found there was a substantial and material change, the next question becomes how the alimony should me modified under T.C.A. 36-5-121(i), with the two most important factors being Husband's ability to pay and Wife's need in light of the changed circumstances.

Here, the trial court found that Husband had a continued ability to pay but Wife's need had been lowered and modified the alimony from $750 per month to $500 per month. However, the Appellate Court, in light of the Tennessee Supreme Court decision Gonsewski v. Gonsewski 350 S.W.3d 99 (Tenn. 2011), decided that in this case the alimony should have been terminated completely because alimony in futuro was not proper. Accordingly, the Appellate Court terminated the Husband's alimony obligation retroactively dating back to March 1, 2012.

The case of Osesek v. Osesek, No. M2011-00984-COA-R3-CV (March 6, 2012) shows Tennessee divorce attorneys how the principals in the recent Tennessee Supreme Court case of Gonsewski v. Gonsewski (350 S.W.3d 99 (Tenn. 2011) will likely affect future litigation concerning alimony.

In Osesek, Husband was obligated to pay to the Wife the amount of $5,500 alimony in futuro. Husband then filed to terminate or modify his alimony based upon his job having been eliminated and his inability to find other employment. He also alleged that the Wife had obtained part-time employment. He argued that his job loss was a material change of circumstances. The trial court held that he was not entitled to a reduction or termination, and Husband appealed.

Alimony in futuro is given to provide a spouse with long-term support until their death or remarriage under T.C.A. 36-5-121(f)(1). However, alimony in futuro is modifiable if there is a substantial and material change of circumstances shown. The change must have occurred since entry of the final divorce decree. The modification must also be warranted.

A change is "substantial" if it significantly affects one of the parties - either the obligor's ability to pay or the obligee's need for support. The change becomes "material" when it occurs after entry of the decree and wasn't foreseeable or contemplated at that time.
Here, the Trial Court determined that the Husband had indeed lost his job, an event that was not forseeable and that occurred after entry of the decree, but that because he had substantial other assets, he could continue making the alimony payments and was not entitled to any modification or termination. That meant he did not meet the burden of a "substantial " change.

The Appellate Court here in this case actually remanded to the trial court to have the trial court do a new analysis of whether this change that the Husband argued was "substantial" in light of the recent Tennessee Supreme Court holding in Gonsewski v. Gonsewski (350 S.W.3d 99 (Tenn. 2011). The Gonsewski case stated that the Tennessee legislature favors short-term support over long-term support, with the goal, when possible, to rehabilitate the economically disadvantaged spouse. The Gonsewski court went on to state that alimony in futuro (awarded in this case) should only be given when economic rehabilitation is not an option and long-term support is really necessary. The Appellate Court here also gave some additional instruction to the trial court - to take into account the likely duration of the Husband's separate assets in light of his unemployment when considering a change in the alimony.

A recent Court of Appeals case shows Tennessee divorce attorneys when alimony in futuro is appropriate. In the Jackman v. Jackman case, No. W2010-01435-COA-R3-CV, the husband and wife married in 1996 but separated in 2002 after the wife discovered husband was having an affair. During the divorce proceedings, wife argued that not only was she economically disadvantaged but she was also unable to ever work again due to, among other physical ailments, depression and anxiety disorder. This was confirmed during depositions of her treating psychiatrist and court-appointed psychologist.

The court ordered the husband to pay the wife $2,400 a month in rehabilitative alimony. But before a final decision was made the court ordered the wife to undergo a vocational rehabilitation evaluation to make sure that she really was unemployable. The vocational rehabilitation program confirmed that she was not. The wife then argued that the court order should be amended to change the alimony to be in futuro instead of rehabilitative. The trial court permitted the change and increased the husband's alimony from $2,400 a month to $2,900 a month. The trial court also ordered the husband to maintain an additional $150,000 in life insurance coverage to secure his alimony obligation to his wife. The husband then appealed the trial court's decision.

Husband argued that even if the trial court could amend an alimony award (which the appellate court held it could), granting the wife alimony in futuro was not proper. Under T.C.A. § 36-5-121(f)(1), a party is granted alimony in futuro when the disadvantaged spouse is unable to achieve an earning capacity that will permit the spouse to have a living standard comparable to the living standard that they enjoyed while married. While T.C.A. § 36-5-121(i) uses twelve factors in determining alimony, the appellate court ruled that the two most important factors relating to an alimony award are the need of the economically disadvantaged spouse and obligor spouse's ability to pay. Since it was determined that the wife could never work again, the court ruled that granting alimony in futuro was appropriate. Also, even though alimony in futuro is usually not granted in situations where the marriage was of short duration, the court held that in such was not the case here. Even though they were separated in 2002, they did not divorce until 2006. Therefore the marriage legally lasted ten years.

The Appellate Court also held that although the husband had to support his current spouse and their three children, this was not a factor to take into account when determining alimony. As the court stated, the rule in Tennessee is that obligations voluntarily assumed by a party are not proper considerations for changed circumstances to reduce payments otherwise owed. Lastly, the appellate court held that requiring the husband to maintain a life insurance policy on the wife was proper. Under T.C.A. § 36-5-121(l), a trial court is allowed to require a spouse to maintain a life insurance policy to secure their alimony obligation.

In Jekot v. Jekot, No. M2010-02467-COA-R3-CV, the Wife appealed a trial court's reduction of her alimony after a contested divorce trial in Tennessee. Husband applied for this modification citing a lack of income. The Appeals Court reversed the trial court, finding that there was no substantial and material change.

The parties divorced in 2005, having been married thirty years. Wife was given rehabilitative alimony as follows: $15,000 in alimony for one year, $10,000 for the next two years and $5,000 for two years. Husband initially appealed this, and the alimony was modified to be in futuro because Wife had not worked in 25 years and could not realistically be expected to gain substantial employment while near the retirement age. The Appeals Court also changed the payment schedule to equal monthly payments of $9,000 for the same term of five years.

Then in 2008 Husband filed to modify his alimony because his income had decreased and Wife's need also had lessened. After a hearing, the trial court determined a substantial and material change existed, finding Husband's income decreased by 1/3rd and decreased his alimony to 5,000 per month. Wife appealed.

Modification of alimony depends on whether there is a substantial and material change of circumstances, which means the obligor cannot pay or the obligee has less of a need, and must have occurred since the entry of the divorce decree. The Appeals Court's review of Husband's tax records indicate his average taxable income in 2001-2003, used to first set alimony, was $404,000. His average income between 2006-2010 was $605,000. Accordingly, the trial court erred by not looking at Husband' income from all sources, but relying on just his private practice income and not including income received from working on call for emergency rooms.

Husband also argued that his expenses increased because he is paying $108,000 in alimony per year. This argument is meritless because this is not a material change - it did not occur after the entry of the final decree and was not unanticipated.
Finally, the trial court decided Wife had additional income and therefore less need. However, this income is from an income-producing asset awarded to Wife in the divorce. Although the original determination was for it to be sold and the proceeds divided, the parties entered an agreed order stating Wife would retain such an asset and keep the proceeds instead of selling it. Therefore, this is not unanticipated either. Absent Husband showing this income was unforeseen, income derived from a marital asset subject to distribution is not a factor in whether a substantial and material change exists.
Therefore, the trial court is reversed and remanded to have the divorce decree reinstated.

In the case of Davis v. Davis, No. E2010-00958-COA-R3-CV (Tenn. Ct. App. Aug. 30, 2011), the Wife appealed the trial court's classification of Husband's agreement to carry Wife's insurance as alimony in futuro. The original agreement was as follows: Wife was given a paid position on the board of Husband's company, CBM, which allowed her to be on the company's health insurance plan. Wife was then to reimburse CBM for all costs they incurred from her coverage. Husband eventually sold CBM to his son, who continued Wife's position and coverage. Then in 2005, CBM ended its group coverage for all employees and ceased paying Wife as a board member. Wife sued CBM and Husband. The Chancery Court for McMinn County held that the CBM payments were alimony in futuro, deemed Husband liable for CBM's lack of coverage and required him to cover Wife going forward. Husband appealed.

Interestingly, both parties disagreed with the trial court's classification of the insurance provision as alimony. Wife argued the payments could not be modified (and therefore cannot be alimony in futuro, which is modifiable) and did not cease upon death or remarriage. Husband argued that the agreement was a good-faith compromise allowing Wife to obtain insurance in return for her services as a board member.

The Court of Appeals noted that the original agreement stated that neither party would owe the other any spousal support. Also, the trial court, under T.C.A. §36-5-121(k) may require either party to pay health insurance costs for any appropriate length of time. However, this was an agreement of the parties, which the Appeals Court stated was terminable by Wife at any time or by Husband upon the extinguishing of his interest in the company, which he retained the right to do. Accordingly, the Appeals Court agreed with Husband that this was a good faith concession to allow Wife to easily obtain coverage, and therefore is properly classified as property division. Therefore, when Husband sold his interest in CBM, his obligation to carry Wife's insurance ended and Husband should not be held liable for prior unmade payments or future payments related to Wife's health insurance. The Court also ruled that the Wife could not recover payments from CBM either, because this was not an employment contract but an agreement between Husband and Wife. The Court further stated that neither the Husband nor CBM would be tasked with providing coverage for Wife indefinitely. The option for Wife to be covered by insurance in this manner was just that - an option, which the parties' agreement allowed to terminate at any time. Therefore the decision of the trial court was reversed and costs taxed to the Wife.

The case of Bordes v. Bordes, No. M2010-02036-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2011), illustrates the standard for modifying alimony post-divorce in Tennessee based upon the obligor's ability to pay.

The parties divorced in June of 1999, with Wife have primary custody of the children and Husband paying alimony in futuro of $1,700 per month until the child support for the oldest child stopped, at which point he would pay $2,300 until the child support for the youngest child ended and then $2,000 thereafter. In 2008, Husband filed a petition to decrease his alimony, citing health problems that kept him from working as he had in the past. He had switched businesses and was only making $800 per month from employment and $1100 from his retirement.

The trial court (Williamson County) held that the "economic downturn in the economy" was a substantial and material change in addition to his previously un-contemplated health issues. However, the Court also held that the Husband's decision to sell his business and invest in another, lower-paying ($800 per month) business should not result in the Wife being penalized. Therefore, Husband's petition was denied and Wife was awarded $750 in attorney's fees. Husband appealed.

The Appeals Court stated that "substantial" means a significant effect on either the payor's ability or the payee's need. The evidence in this case showed a dramatic drop in Husband's income, which equaled a substantial change in his ability to pay. The Court went on to explain that "material" means a change having occurred after the initial alimony order and one not contemplated at the time the settlement was entered. Here, the Husband's decrease in income and health problems met this standard.

The Court of Appeals, having affirmed (albeit for different reasons) that a substantial and material change existed, moved on to determining whether the trial court erred in denying Husband's modification. This issue is controlled by T.C.A. §36-5-121(i). The most important factors are the need of the receiving spouse and the ability of the payor spouse, considered equally. Here, the trial court determined Husband's earning capacity to be between $75,000 and $100,000 per year. The Appellate Court agreed with the lower of that range of $75,000. The Appeals Court also found that Wife's need was actually $950 per month less than Husband's alimony payment, based upon her filed affidavit of expenses and income. Therefore, the trial court's denial of Husband's modification was in error. The Appeals Court also found error in the award of attorneys fees, reversing that as well. Accordingly, the Appeals Court instructed the trial court to enter an order setting Husband's alimony at $1050.00 per month.

The recent case Brock v. Brock, No. E2009-01128-COA-R3-CV, (Tenn. Ct. Ap. Aug. 12, 2011) shows how high the standard is for a Tennessee divorce trial court to be overturned.

The parties married in 1996 and filed for divorce in 2005, after having two children. The trial court ordered Husband to pay $1,112 in child support per month, $300 in spousal support per month for 60 months and $8,5000 in alimony in solido for Wife's attorneys fees and court costs. Husband appealed, arguing he had an inability to pay.

Husband argued that after paying his obligations, he had a deficit of $1,104 every month and that the trial court failed to correctly apply the relevant statutory factors in T.C.A. §36-5-121(i).

Here, the Husband testified his net income was $5,600 per month and expenses of $6,710, while Wife stated she had $1,612 in monthly income and $795 in child support, with expenses of $3,055. The Appellate Court failed to find that the trial court erred in awarding the Wife $300 per month in alimony, stating that the amount and number of months was supported by the trial evidence. The Court noted that Husband's military career gave him training and education, but the Wife's only experience was in the service industry. Further, Wife had a lower earning capacity, proved a need for support and had few other financial resources.

Husband also appealed the award of Wife's attorney's fees, arguing that the evidence did not support his ability to bear this financial burden. Attorney fees are always considered alimony in solido, and need is the most important factor to the trial court. An appellate court can only overturn an award of attorneys fees of there is a clear abuse of discretion proven. This means that the trial court's decision will not be overturned if "reasonable minds can disagree as to propriety of the decision made." Id. at 6. Here, there was no abuse of discretion. Wife also asked for her attorneys fees incurred as a result of the appeal, and therefore the case was remanded to the trial court for that determination.

In Brock v. Brock, No. E2009-01128-COA-R3-CV, 2011 WL 3557525, at *1 (Tenn. Ct. App. Aug. 12, 2011), the Court of Appeals ruled in a Tennessee divorce case that the husband's inability to pay spousal support and attorney's fees did not outweigh the wife's need for spousal support.

The parties married in August 1996. After nine years, Wife filed for divorce. Husband and Wife had two daughters together, as well as a third daughter that they took care of from Husband's previous marriage. The trial court held that Husband was to pay $1,112 in child support per month, $300 in spousal support per month for 60 months, and $8,500 as alimony in solido for Wife's attorney's fees and costs. Husband appealed, claiming that along with his other expenses at the time of the original hearing, he had a deficit each month and was therefore unable to pay the alimony. His monthly income was $5,600 per month with monthly expenses totaling $6,710. Wife, on the other hand, earned $1,612 per month with $795 in monthly child support at the time of the original hearing. Her total expenses per month were $3,055.

As the Appellate Court explained, Tennessee law recognizes four types of alimony: rehabilitative alimony, alimony in futuro, alimony in solido, and transitional alimony. However, Tenn. Code Ann. § 36-5-121(d)(2) favors rehabilitative alimony over other types of alimony. Before alimony is even awarded, a court looks to the unique circumstances of the case, with the most significant consideration being the need of the recipient spouse, followed by the obligor spouse's ability to pay. If it is found that alimony should be awarded, Tenn. Code Ann. § 36-5-121(i) provides 12 factors for a court to determine the nature, amount, and period of time of the award.

The Appellate Court affirmed the trial court's ruling, holding that it did not abuse its discretion because the trial court had wide latitude when it determined whether to award alimony. While looking at each spouse's situation, the trial court did not err when finding that Wife clearly demonstrated a need for spousal support. As for attorney's fees, they constitute an award of alimony in solido. A critical factor in determining whether attorney's fees should be awarded is the need of the spouse for whom the alimony is being requested. Unless the trial court applied an incorrect legal standard, an appellate court cannot substitute its judgment for that of the trial court. Since there was no evidence that the trial court misapplied any legal standard, the awarding of attorney's fees was also upheld.

The case of Colston v. Colston, 2011 WL 2601447 (Tenn.Ct.App., June 30, 2011) reminds us that a trial court must make specific findings of fact when determining monthly payments of alimony arrearages in Tennessee.

The couple divorced in September 2007 under a Final Decree that required Husband to pay $3,000 of alimony per month to the Wife. Husband appealed the alimony award, which was upheld. Husband then filed a Petition to Terminate Alimony, alleging he had become unable to work because of his medical problems, which rose to the level of a substantial and material change of circumstances. Wife responded, denying he was entitled to a termination and alleging his failure to pay alimony under the court order.

The trial court heard testimony regarding Husband's physical ailments. Wife stated that she did not object to his alimony being terminated after the date of the filing of his petition in December 2009, but asked that he still be required to pay all amounts that accrued from the date of the Final Decree (September 2007) until he filed his Petition. The trial court terminated his alimony but ordered that he pay the $86,000 arrearage that had accrued between 2007 and 2009 at a rate of $1,500 per month plus ten percent interest. Husband appealed, alleging the court erred in assessing him an arrearage and asking for a reduction in the monthly payment to $500 per month.

The Appeals Court held that T.C.A. §36-5-121(f)(2)(A) does not "expressly authorize" a trial court to change an alimony award prior to the date that a petition to modify is filed. However, the Court goes on to imply that the trial court can order a retroactive modification dating back before the petition was filed, but that in this case the trial court did not abuse its discretion by not doing so.

The Court then turned to the monthly arrearage payment amount ordered by the trial court. The trial court had failed to make a finding regarding the Husband's ability to earn or actual earnings. Therefore, the Appeals Court could find no basis for order of a monthly payment. Accordingly, the case was remanded to the trial court for reconsideration of his ability to pay and to determine an appropriate payment amount, if any, based upon his income and expenses.

Alimony is often a contentious issue in Tennessee contested divorces. T.C.A. § 36-5-121(d) addresses all types of alimony awards in Tennessee, including in futuro, transitional, in solido or a combination thereof, but states a preference for rehabilitative alimony over all other forms. The statute suggests that only when rehabilitation is not possible should long-term alimony be awarded by a trial court in a divorce matter. This rehabilitation is supposed to allow the spouse to obtain with reasonable effort an earning capacity that is comparable to the standard of living of the marriage or to the standard of the other spouse post-divorce. The rehabilitative alimony is intended to aid the disadvantaged spouse in becoming self-sufficient by obtaining job abilities, education or training. Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn.Ct.App.1998).

In a recent Tennessee Court of Appeals case entitled Pettijohn v. Pettijohn, 2011 WL 684268 (Tenn.Ct.App. Feb. 28, 2011), the Wife was awarded alimony in futuro because the trial court determined she could not be rehabilitated and that she needed additional income of $1,750 per month to meet her expenses and maintain her standard of living. This award was upheld in light of the fact that there was a large disparity in income, Wife had health problems, and had "no reasonable expectation of improving her economic conditions." In Riggs v. Riggs, 250 S.W. 3d 453 (Tenn. Ct. App. 2007), the Wife was awarded rehabilitative alimony in light of the fact that she had a real estate license and ran an "upstart" candy business. Because of those two factors, and due to her testimony that the business could succeed, long-term alimony was not appropriate. In Owens v. Owens, 241 S.W.3d 478 (Tenn. Ct. App. 2007), the Wife was awarded $3,000 per month in rehabilitative alimony due to the Wife spending the last twenty-five years as a homemaker and parent while the Husband had an "established career." In Stagner v. Stagner, 2010 WL 3717030 (Tenn.Ct.App. Sept. 23, 2010), the trial court's award of $15,000 of rehabilitative alimony to the Wife for the purpose of allowing her to obtain a master's degree was upheld in light of the fact that Husband had received two post-grad degrees while married, during the time where the Wife was the primary parent for the children due to the Husband's career in the Navy.

These cases show that whenever rehabilitation is available, that should be the appropriate remedy, but when not available, long-term support is a legitimate option regardless of the statutory preference.

Many people believe that for alimony to apply in Tennessee, your marriage must have lasted over ten years. Although the length of a marriage is one factor in the decision to award alimony, it is less of a rule of thumb than what is widely believed. Several types of alimony exist in Tennessee, including in solido, rehabilitative, in futuro and transitional. When a court considers any of these forms of support, a relatively short marriage is not necessarily a bar to such an award.

With all alimony awards, the divorce court must consider a variety of factors, including: the parties' earning capacity and resources; education and training; length of marriage; the parties' age and mental status; any physical limitations; needs of the children involved; separate assets; division of martial property as part of the divorce; standard of living; contributions to the marriage; relative fault; and other factors the court deems relevant. The most important consideration is always the need of the disadvantaged spouse. Once that is shown, the Court will next look to the obligor's ability to pay.

In a case from Gibson County, Tennessee,Crocker v. Crocker, 2006 WL 3613591 (Tenn. Ct. App. Dec. 11, 2006), the Court awarded alimony in futuro to the Wife even though the marriage had only lasted for five years, due to her status as disabled in light of the Husband's six-figure gross income and real property holdings. Further, the Tennessee Appeals Court in Montgomery v. Silberman, 2009 WL 4113669 (Tenn. Ct. App. Nov. 24, 2009), upheld an award of transitional alimony after a seven-year marriage, citing the high standard of living and relative fault as contributing factors. In another seven year marriage, described in Lassiter v. Lassiter, 2000 WL 1425235 (Tenn.Ct.App Sept. 28, 2000), the Court again upheld a decision giving the Wife alimony in futuro based upon her meager income from Social Security and her disability that prohibited her from entering the workforce, even though the Husband only showed gross income of approximately $1,400-$1,600 per month.

Therefore, depending upon the specific facts and circumstances in each case, the ten-year rule of thumb is not reliable. Tennessee divorce courts will consider a multitude of factors ranging from financial resources to child support payments. If you are contemplating divorce, alimony may be a consideration regardless of the length of your marriage.