Alimony is defined as a court-ordered allowance that one spouse pays to the other spouse for maintenance and support after they are divorced. In determining whether to award alimony, the court must first consider whether the spouse seeking alimony is economically disadvantaged. Once the trial court has found a party to be economically disadvantaged relative to his or her spouse, it must determine the nature, amount, length of term, and manner of payment of the award. In setting the type, duration, and amount of support, courts are guided by the following factors:
(1) 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;
(2) 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 earnings capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
(6) 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;
(7) The separate assets of each party, both real and personal, tangible and intangible;
(8) The provisions made with regard to the marital property, as defined in § 36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) 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;
(11) The relative fault of the parties, in cases where the court, in its discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
Tenn. Code Ann. § 36-5-12
In addition to the factors found in Tennessee Code Annotated § 36-5-121 the two most relevant factors in determining the amount of alimony awarded are the economically disadvantaged spouses need and the obligor spouse’s ability to pay. When considering these two factors, the primary consideration is the disadvantaged spouse’s need. Tennessee recognizes four different types of alimony: rehabilitative alimony, transitional alimony, alimony in futuro, and alimony in solido.
Alimony in Futuro in Tennessee
Alimony in Futuro is a long-term form of spousal support. This is typically awarded in “long term” (about 20 or more years) marriages where one spouse is disadvantaged economically and rehabilitation is not feasible, meaning that the disadvantaged spouse cannot achieve an earning capacity that will allow him or her to maintain an appropriate standard of living. This alimony is awarded on a “long term basis or until death or remarriage” spouse. Tennessee law says that alimony in futuro will be owed when the person receiving support cannot be expected to reach a level of earning capacity to allow a standard of living comparable to that enjoyed during the marriage; or comparable to the post-divorce standard enjoyed by the other spouse. Practically, however, courts are less likely to put emphasis on the standard of living and more on the need and ability to pay. The majority of the judges are not going to award an amount to make the lifestyles of the parties exactly equal post-divorce.
Tennessee alimony modification law provides that “modifications of alimony may be granted only upon a showing of a substantial and material change in circumstances since entry of the original support order.” (1) “In order to be material, a change in circumstances must have been unforeseeable, unanticipated, or not within the contemplation of the parties at the time of the decree.” (2) “To be considered substantial, the change must significantly affect either the obligor’s ability to pay or the obligee’s need for support.”
A material change in circumstance example could potentially be the supported spouse now living with a third party. This could raise a rebuttable presumption that support may no longer be needed. Alimony in futuro will automatically terminate upon the death of either party or the supported spouse being remarried.
Transitional Alimony in Tennessee
This type of Tennessee Alimony comes into play to allow the financially disadvantaged spouse the ability to exit the marriage and reenter society as a single person with as little disruption as can be expected. Transitional Alimony is usually measured in months with a goal to allow each of the spouses to return to their premarital standard of living. It is relative to marriages of relatively short duration.
T.C. A.§36-5-121(g)(1) Transitional alimony means a sum of money payable by one (1) party to, or on behalf of, the other party for a determinate period of time. 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, legal separation or other proceeding where spousal support may be awarded, such as a petition for an order of protection.
Transitional Alimony in Tennessee cannot be modified once ordered by the court in the Final Decree of Divorce. Transitional Alimony may be deemed to be taxable to the recipient and tax deductible to the party providing the support. Parties should inquire their counsel as well as the tax professional regarding the tax consequences of any support ordered in their matter. T.C. A.§36-5-121(g)(2) discusses the exceptions to the nonmodifiable clause. In summary, parties can agree to modify in an agreement incorporated in the final decree, the alimony recipient lives with a third person in which rebuttable presumption is raised that the third person is contributing to the support of the recipient thus need is no longer there, and it can terminate on death of the or re-marriage of the recipient.
Rehabilitative Alimony in Tennessee
Rehabilitative alimony serves the purpose to allow the financially disadvantaged spouse to return to school, regain certain certifications, reenter the workforce at a lower economic level with the intent to ascend to a higher position or even to begin an entirely new career. The statute references a goal, with reasonable effort, to permit the economically disadvantaged spouse to get to a standard of living reasonably comparable to that enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse T.C. A.§36-5-121(d)(2). In application, most judges will find self-sufficiency is more the goal than equal standards of living after divorce.
As with alimony in future, rehabilitative alimony may be modified by the courts upon a showing of substantial and material change in circumstances. It can also be extended beyond the term initially established by the court, or to be increased in amount, or both, the recipient of the rehabilitative alimony shall have the burden of proving that all reasonable efforts at rehabilitation have been made and have been unsuccessful. T.C. A.§36-5-121(e)(2).
Alimony in Solido in Tennessee
Alimony in solido, also called lump-sum alimony, is a unique form of alimony. The payments are either a single lump-sum or a series of payments over time. This is often used to offset unequal earning capacities or unequal incomes of the parties in lieu of other types of spousal support. For example, it could be granted by awarding a larger portion of the proceeds of the sale of the marital residence or other marital property to the financially disadvantaged spouse. It can be used to pay the disadvantaged spouse’s attorney fees or to satisfy debt owed in the name of the disadvantaged spouse.
T.C. A.§36-5-121(d)(5) states that alimony in solido may be awarded in lieu of or in addition to any other alimony award, in order to provide support, including attorney fees, where appropriate. A final award of alimony in solido is not modifiable, except by agreement of the parties only, T.C. A.§36-5-121(h)(2). Alimony in solido is not terminable upon the death or remarriage of the recipient or the payor, T.C. A.§36-5-121(h)(2).
It is important that you are aware of your rights in regards to spousal support. In many cases, one spouse attempts to dominate or intimidate the other. In reality, the spouse trying to intimidate has no clue about Tennessee Divorce law. It is to your advantage to speak with a Tennessee family law attorney and learn what your rights are. Initial consultations are of no cost at Cartwright Law, take advantage by setting up an appointment.
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