The common issue of contention and acrimony in a divorce matter is the claim for alimony by a spouse. For example, “I will work at McDonald’s before I pay her alimony.” (actual quote from a divorce we have handled) It often frustrates an open dialogue on an amicable resolution of other issues such as dividing up the marital estate or setting forth parenting time. The court in the award of alimony evaluates certain facts that are applied to a set of enumerated statutory factors. There are a number of different forms of alimony a court may award. The amount of alimony may be temporary, lasting for a specific amount of time, or permanent until death, remarriage, or cohabitation with another partner. Alimony is also often characterized as spousal support. Upon filing of a divorce complaint, a motion for temporary support may be filed with the court requesting either a certain amount each month or that specific expenses such as mortgage and utilities be paid by the other spouse until a final hearing when a divorce would be granted. The spouse requesting temporary support will provide an affidavit of income and expenses along with a recent pay stub or tax return.
If the marriage has lasted many years, for example 20 years or more, the court will determine an amount of alimony that satisfies the long term needs of the spouse. A shorter marriage, for example 10 years or less, the court will determine an amount and length of time that will allow the spouse to support themselves. For example, the spouse may want to go back to school to get a degree to qualify for a new career. Depending on the type of alimony, it can be modified at any time by the court if facts support the request such as death, remarriage, cohabitation, or substantial increase of salary or education. It must qualify as a substantial and material change of circumstances.
T.C.A. 36-5-121 is the statute that sets out different types of alimony to be awarded and factors to apply in determining the type, amount, length of time, and manner of payment. The following are the statutory factors to be applied:
(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 § T.C.A. 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.
Case law is pretty consistent that the two most important factors to first consider are need and ability to pay. Furthermore, fault is a factor in awarding alimony but not in dividing the marital estate of assets and debts.
The statute referenced above sets out the forms of alimony that can be awarded. The statute states that it is a matter of public policy that a recipient spouse’s contribution to the home and family unit are of “equal dignity” and “importance” as that of the payor spouse contributing financially as the bread winner and considered the more economically advantaged party. As part of this public policy, the court shall place the recipient spouse, who was the homemaker, in an equal standard of living after the divorce as enjoyed during the marriage considering relevant factors and equities between the parties.
Rehabilitative Alimony:
The court must first consider whether the recipient spouse, or the “economically disadvantaged spouse” as referred in the statute, can be “rehabilitated.” This means can the spouse with an award of rehabilitative alimony and through reasonable effort accomplish an earning capacity affording a standard of living after the divorce as enjoyed during the marriage. The court will look at age, work experience, skill sets, age of children in the home, and education as factors to determine this standard. This form of alimony would be expected to be short in duration and nominal in amount. If the court deems that the spouse cannot be rehabilitated, then it may proceed in considering the other forms of available alimony per statute. Rehabilitative alimony is distinct and separate from the other forms of alimony. If the economically disadvantaged recipient spouse is deemed to be only partially rehabilitated, then another form of alimony may be awarded in addition to rehabilitative alimony. It may be awarded for any amount, length of time, and in manner of payment. It may be modified upon a showing of substantial and material change of circumstances. The statute states clearly that it shall terminate upon the death of the either spouse.
Alimony in Futuro:
Alimony in futuro, also known as periodic alimony, is a payment of support and maintenance on a long term basis or until death or remarriage of the recipient. It may be awarded when the court deems the economically disadvantaged spouse cannot be rehabilitated as defined above. This form of alimony may be modified by a court upon a showing of substantial and material change in circumstances. It may terminate upon death of either spouse or if the spouse cohabitates with a third person who supports the spouse or receives benefits from the spouse. The statute requires that the recipient spouse notify the payor spouse of remarriage immediately. Upon failure to do so, the payor spouse may file an action in court to recover those payments from the recipient spouse.
Transitional Alimony:
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.” This form of alimony may not be modified unless agreed to by parties, ordered as modifiable in the court decree, or cohabitation with a third party. This form of alimony obligation would terminate upon death of recipient spouse. It also terminates upon the death of the payor spouse unless otherwise specifically stated in the decree. It is noteworthy that this form of alimony does not terminate upon the recipient spouses’s remarriage automatically. The statute specifically states: The court may provide, at the time of entry of the order to pay transitional alimony, that the transitional alimony shall terminate upon the occurrence of other conditions, including, but not limited to, the remarriage of the party receiving transitional alimony.
Alimony in Solido:
Alimony in solido, also known as lump sum alimony, is a form of long term support, the total amount of which is calculable on the date the decree is entered, but which is not designated as transitional alimony. Alimony in solido may be paid in installments; provided, that the payments are ordered over a definite period of time and the sum of the alimony to be paid is ascertainable when awarded. The purpose of this form of alimony is to provide financial support to a spouse. In addition, alimony in solido may include attorney fees, where appropriate. This form of alimony is distinguished from the other forms in that it is not modifiable unless by agreement of the parties and is not terminated upon the death of either spouse.
Finally, the statute further prescribes that any order of alimony that has been reduced to judgment shall be entitled to be enforced as any other judgment of a court of this state and shall be entitled to full faith and credit in this state and in any other state.
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