Tennessee Alimony Law in Divorce | Answers to FAQs
Memphis divorce lawyer, Miles Mason, Sr., answers frequently asked questions about Tennessee alimony law and the four types of alimony in Tennessee divorce, including alimony in futuro (periodic), transitional alimony, alimony in solido (lump sum), and rehabilitative alimony. Each form of alimony has a defined purpose and requirements regarding monthly amounts, length of term, modification, and termination.
What is alimony in Tennessee divorce laws?
Alimony is the legal obligation to support a spouse. Many states refer to this as spousal support or spousal maintenance. Tennessee refers to this legal obligation as alimony. If the length of marriage is longer, say 25 years or more, then the obligation will be determined based on the long-term support needs of the supported spouse. If the marriage is shorter, say under 10 years, then the reason for alimony is more likely to be one of helping the supported spouse become self-supporting.
In addition to the monthly amount and length of term of payments, the type of alimony is very important. There are four types of alimony in Tennessee: alimony in futuro (also called periodic alimony), transitional alimony, rehabilitative alimony, and alimony in solido (also called lump-sum alimony). The type of alimony dictates whether the award may be modified after the divorce and under what circumstances the alimony obligation terminates.
When is alimony paid in a divorce?
Alimony can be paid before and after a divorce. In general, Tennessee law requires payment of alimony when one spouse has the ability to pay and the other spouse has the need for support. If a spouse has no need for support or the other has no ability to pay it, then alimony should not be awarded.
Prior to divorce, alimony can be awarded as temporary support (also called pendente lite support). In most cases, temporary alimony is awarded so long as the divorce is pending. By the spouses’ agreement or as part of the court’s order, temporary alimony could be made to expire on a certain date or upon application of a party after a certain date.
Who has a claim to receive post separation support and alimony?
Generally, if a divorcing spouse has need and the other spouse has the ability to pay alimony, a court will consider requiring alimony be paid. For more information, see Temporary Alimony FAQs (below).
How long is alimony paid in a Tennessee divorce?
That depends. There is no preset minimum or maximum payment period or length of term. After divorce, how long alimony payments will continue depends upon a number of circumstances, including the length of the marriage and the income disparity between the spouses. A long-term marriage of more than 20 years will likely result in a longer-term alimony payment than, by comparison, a much shorter marriage. But if a spouse is incapable of self-support because of disability or long-term health condition, the length of payment could be permanent even if the marriage was shorter.
How does alimony work in Tennessee divorce law?
In Tennessee, alimony is a payment from one spouse to the other for financial support. There are different reasons a court may order payment of alimony.
Alimony may enable the spouse receiving 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, and is most common in longer marriages.
Another reason for alimony is to help the receiving spouse become “rehabilitated.” For example, alimony may allow that spouse to return to school for the purpose of increasing earning capacity and becoming financially independent of the other spouse. This is called rehabilitative alimony.
A third type of alimony in Tennessee is intended to help with the transition to life after divorce. Transitional alimony is awarded when the court finds that rehabilitation is unnecessary, but the economically disadvantaged spouse does need help adjusting 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 the division of property. This is called alimony in solido, or lump sum alimony.
There are no exact formulas for determining the type, length, and amount of alimony payments. In every case, there are many factors to consider. Importantly, be mindful that if alimony is not awarded or agreed upon at the time of the divorce, then it cannot be obtained later.
Who is the dependent spouse?
The dependent spouse is the one who receives support during the marriage. In a traditional marriage situation, the spouse who does not work or who stays home with the children will be considered the dependent spouse. Note that the difference in income earnings capacity comes into play here. For example, a dependent spouse who stays at home during the marriage to care for the children may be equally capable of earning income after the divorce. Factors in that analysis could include the spouse’s level of education, prior earnings history, intelligence, and the overall historical income earnings disparity between the spouses.
If a spouse can return to the workforce and earn a living similar to that enjoyed during the marriage, then he or she may not be considered a dependent spouse for alimony purposes. If the parties dispute whether or not a spouse should be considered a dependent spouse, then either or both may involve a vocational expert. A vocational expert will testify as to the spouse’s future earning capacity following a return to the workforce.
Will I receive alimony in Tennessee divorce?
The spouse seeking support is referred to as the supported spouse, alimony recipient, dependent spouse, or less-propertied spouse. Whether or not a spouse receives alimony depends upon the circumstances. Prior to divorce, alimony can be awarded as part of temporary support, also called pendente lite support. In most cases, temporary alimony is awarded so long as the divorce is pending. In many divorces, the spouses will agree on an amount of interim support. But if the parties cannot agree, one spouse can apply to the court for temporary alimony. Thereafter, if the divorce case does not settle, then the supported spouse can ask the court to award alimony at the divorce trial.
Do I have to pay alimony in a Tennessee divorce?
The spouse paying support is often referred to as the supporting spouse, alimony payor, independent spouse, or more-propertied spouse. When the supporting spouse has an ability to pay and the supported spouse has a reasonable need, the court is likely to award alimony payment to the supported spouse.
Will I have to pay alimony to my husband?
Possibly. There is no legal basis requiring or favoring one gender owing support to the other based solely on sex. In fact, it would be unconstitutional to require that only men pay alimony to women. If a woman was the primary breadwinner in the family, she could owe alimony to her husband. It all comes down to need and ability to pay. In practical application, there can be residual stereotypes that could make it more difficult for men to receive alimony absent some sort of disability or lengthy absence from the workforce.
TENNESSEE ALIMONY GUIDELINES
How is Tennessee alimony determined?
There are two primary sources of law that direct the Tennessee courts. First, there is statutory law created by the Tennessee Legislature. These statutes define the four types of alimony, direct courts as to when alimony should be paid, length of payments, amount of payments, under what circumstances alimony can be modified, and whether alimony terminates automatically or can be eliminated by application to a court. The alimony statutes provide the important definitions, factors, circumstances, and restrictions under which alimony can be owed and paid.
Second, there is Tennessee “case law.” Case law is an informal term describing the decisional body of law created and written by Tennessee’s appellate courts when interpreting the statutes. In Tennessee, the appellate courts are the Tennessee Court of Appeals and the Supreme Court of Tennessee. Following a divorce trial, either party may appeal the trial court’s final decision as a matter of right by claiming the trial court erred in its ruling. Following this appeal as of right, either party may ask the Supreme Court of Tennessee to hear the case. The Supreme Court chooses whether or not it will hear the appeal. As a practical matter, the Supreme Court of Tennessee hears only a relatively small percentage of cases seeking consideration.
When an appellate court makes a decision, it issues a ruling in the form of a written legal opinion. Some opinions are published and have binding effect on trial courts while others are not published. Some decisions are memorandum opinions, designated as such because they have no binding legal affect but are often instructive. Lawyers and judges consult legal opinions for guidance, interpretation, and explanation. The devil is in the details, and these appellate opinions contain the important details on how alimony works in Tennessee.
For more information about Tennessee case law and detailed analysis and commentary, including case law summaries, see our Tennessee Family Law Blog’s Alimony category.
What factors will the court consider in determining Tennessee alimony?
Here are Tennessee’s alimony factors:
- 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;
- The 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 of the parties (who is more to blame) 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 is considered with alimony. Appellate courts often say that need and ability to pay are the two most important considerations.
How much alimony will I have to pay in Tennessee?
Determining how much alimony per month will be paid begins with the supporting spouse’s ability to pay. First, the court determines a supporting spouse’s earning capacity. Earning capacity is determined by looking at the spouse’s historical earnings, education, training, ability to earn, passive income (interest, dividends, capital gains from investments) and assets, including savings. Second, the court looks at the supporting spouse’s monthly expenses. Expenses include housing costs, food, clothing, debts, and general living expenses. The court will look at the supporting spouse’s lifestyle, too. The difference between earnings and expenses is the supporting spouse’s ability to pay which, in turn, is compared to the supported spouse’s reasonable need.
How much alimony will I get in Tennessee divorce laws?
As with determining ability to pay alimony, the court looks at the financial situation of the supported spouse. First, the court will determine the supported spouse’s earning capacity. Education, historical earnings, and ability to earn following retraining, or attaining some additional education or training, are considered. Second, the court considers the projected expenses of the supported spouse. The reasonable need of the supported spouse is his or her earning capacity less projected expenses. In making that determination, the courts are directed to consider the parties’ lifestyle during the marriage (affluent or frugal) and expected independent lifestyle following divorce. While this may be a very subjective determination, the evidence presented can be diverse. This reasonable need amount is compared to the supporting spouse’s ability to pay.
Video: Introduction to How Tennessee Alimony Works
Who can tell me how much alimony I will have to pay or how much alimony I should receive?
When projecting a range of how much a party will pay or receive in alimony, experienced attorneys consider the statutory factors, prior experience with the judge and the other attorney, and written legal opinions for couples in similar financial situations and lengths of marriage. Any projection is just an educated guess and should never be considered a guarantee.
Prior to settlement negotiations, your experienced family law attorney will be able to advise you about a range of outcomes the court may award. This range may be based on legal research and financial analysis (such as a lifestyle analysis) of the parties’ needs, ability to pay, Tennessee statutory factors, and other relevant circumstances unique to the particular situation.
If settlement negotiations fail following mediation, then the case heads to trial. At trial, spouses litigating alimony should focus efforts on submitting evidence related to Tennessee’s alimony factors (listed above). To learn more, see Top 5 Tennessee Alimony Strategies in Divorce.
For legal opinions on Tennessee alimony exemplifying various lengths of marriages, see our Tennessee Family Law Blog and its Tennessee Alimony category. You will find divorce case law summaries grouped by length of years married, as follows:
- Alimony: 0-9 Years Married
- Alimony: 10-14 Years Married
- Alimony: 15-19 Years Married
- Alimony: 20-24 Years Married
- Alimony: 25+ Years Married
Does Tennessee have an alimony formula? Does Tennessee have alimony guidelines?
No. Tennessee law lists factors for consideration. Only a few states have strict formulas. Tennessee does not.
Does Tennessee have an alimony calculator?
No. While Tennessee law does list factors, there is no strict formula or alimony calculator similar to the child support guidelines.
What does alimony pay for?
That will depend upon the type of alimony, purpose of the award, and disparity in earning capacity between the spouses. For example, transitional alimony is designed to help a spouse transition from marriage to becoming self-supporting. Rehabilitative alimony will be awarded if a spouse needs support, but is capable of earning enough money to live, first, at a standard of living close to that enjoyed during the marriage or, second, to the lifestyle projected to be enjoyed by the other spouse after divorce. Long-term alimony is described as alimony in futuro, or periodic alimony. Before alimony in futuro is awarded, however, a court must determine that the supported spouse is incapable of being rehabilitated.
Who decides alimony in a Tennessee divorce?
As a practical matter, most divorces are settled. Which means that, in a vast majority of divorces, the type, length, and amount of alimony is negotiated. The negotiated amount may result from informal negotiations or mediation and is consensual.
When a divorce case is not settled, the spouses will proceed to trial. At trial, the judge hears evidence based on all of the statutory factors and decides the type of alimony awarded, length of term of payments, and the amount. Usually, the judge will specify those circumstances upon which alimony may be modified or terminated.
How is the supporting spouse’s income used to determine alimony?
A court starts with the supporting spouse’s actual earnings history. Usually, that analysis begins by looking at tax returns. All income is considered whether it is taxed or not, including active and passive earnings (such as interest, dividends, and capital gains from investments). The Tennessee court can then look at assets likely to be awarded to the supporting spouse, including separate property. If the court determines a supporting spouse is currently voluntarily unemployed or underemployed, then the court can “impute income” to the supporting spouse and award alimony even when the supporting spouse has insufficient current earnings to justify an alimony award.
Can you give examples of voluntary unemployment?
The possible situations of voluntary unemployment are almost endless. A spouse will be considered voluntarily unemployed if he or she quits a job for an unjustifiable reason (for example, to move closer to a new love interest). Even if the job loss was involuntary, as with a layoff, failure to make a good faith effort to seek new employment can be considered voluntary unemployment. During a divorce, courts expect an unemployed spouse to provide documentation of a job search.
A spouse who is fired for misconduct could be considered voluntarily unemployed, too. For example, when a spouse who is terminated for viewing internet pornography on the job or for gaming on an office computer. In cases of employment termination, even when the supporting spouse seeks new employment, the court could still find that spouse voluntarily unemployed. Additionally, a finding of voluntary unemployment could result in imputed income for child support purposes as well.
Can a spouse quit working to avoid paying alimony in Tennessee?
No. Quitting work to avoid paying alimony is an example of voluntary unemployment. Alimony is based on earning capacity and not necessarily on actual current earnings. The same applies for child support income determinations. When a spouse is voluntarily unemployed, alimony can be based on imputed income.
Can you give examples of voluntary underemployment?
The possible circumstances are countless. Determining voluntary underemployment involves comparing past earnings to current earnings and considering all the circumstances. For example, a spouse who graduates from law school and passes the bar exam, but who refuses to accept employment as a lawyer for less than $75,000 per year could be considered voluntarily underemployed if that would-be lawyer chooses to work at a bookstore for minimum wage.
Another example could be a corporate professional who consistently earned over $200,000 a year, who quits that job during the divorce for a position requiring fewer hours and less travel paying only $75,000 per year. Yet another example of voluntarily underemployment could include an attorney who has a good paying position at a law firm earning $150,000 per year, but quits to start a new practice earning only $50,000 per year. Even if the projected long-term earnings could be significantly higher, a court could impute income at $150,000 for alimony and child support purposes.
How long do I have to be married before I can get alimony in Tennessee?
Not long at all. If the marriage was less than a year, the length of support following the divorce will also likely be very short, maybe a few months. It depends upon the circumstances and each case is unique. As an example, if the couple was married for only three years and the supporting spouse is affluent, earning over $300,000 per year, while the other spouse needs time to return to the workforce, then support could be ordered for a year or a bit longer. As another example in a short-term marriage, if the supported spouse is stricken with a degenerative disease, preventing his or her return to the workforce, then the length of support could be longer than the marriage. Furthermore, temporary alimony could be awarded even if the marriage lasted less than a year.
Can spouses testify against each other in Tennessee alimony cases?
Yes. And it is very common. Look closely at the factors for alimony. The witnesses most likely to testify regarding each of the factors are the parties to the divorce themselves.
FAULT IN TENNESSEE ALIMONY LAW
What is fault in alimony in Tennessee law?
Fault means wrong-doing that contributed to the end of the marriage. Courts can assign blame for the failure of a marriage under Tennessee law. Examples of marital fault include cheating, addiction to alcohol or drugs, physical or emotional abuse, and recklessly wasteful spending. Both parties can be determined at fault or one spouse can be found to be primarily responsible for the end of the marriage. For more information, see:
- Internet Pornography, Sex Addiction & Marriage: Cause for Tennessee Divorce
- TN Divorce and STDs: Playing Russian Roulette with Your Health & Wallet
- Inappropriate Marital Conduct in Tennessee | Browbeating, Bullying, Abnormal Sex
How does fault apply to an alimony claim in a Tennessee divorce?
Fault is a factor the courts will consider in awarding alimony in Tennessee. In general, courts worry less about fault with divorce from short-term marriages (less than seven years). For longer term marriages, though, fault can be heavily considered. However, fault is not supposed to be punitive. In theory that means the court should not award alimony to a spouse just because of marital misconduct and should not pile-on an additional amount of money solely because of wrong-doing. How is that applied in reality? It depends on the judge, the severity of the fault, and the connection between the wrong-doing and the break-up.
Can a cheating spouse get alimony in Tennessee law?
Yes. Generally, if the cheating spouse seeks alimony, then the monthly amount and length of term of payment may be reduced and shortened depending upon the circumstances. Fault is a factor for the court to consider in determining alimony.
What are possible defenses against fault?
Fault is more broadly defined than just adultery or cheating. Fault is a factor for determining alimony. In Tennessee law, there are three defenses to adultery (cheating) as grounds for divorce: recrimination, condonation, and connivance. When a defense is proven, the court may not find grounds for divorce or may lessen the effects of fault on the alimony determination. Recrimination involves proving the other spouse also committed adultery. Condonation involves proving that a spouse forgave the adultery by having marital relations after learning of the affair. Connivance involves actively assisting the spouse in the adulterous conduct, such as paying for the sexual relations or otherwise participating in a spouse’s prostitution. These defenses can involve a wide variety of circumstances. For more information, see Defenses to Divorce in Tennessee | Adulterous and Cruel Without Fault.
What is condonation in Tennessee divorce law?
Forgiveness. If a faithful spouse learns all of the details of an adulterous affair, takes the cheating spouse back and has marital relations, then that faithful spouse could be considered to have forgiven the cheating spouse. A common exception to condonation is if the faithful spouse learns about one extramarital affair, but there were actually two or more affairs. In that instance, condonation may not apply. For more information, see Counseling and Reconciliation After You’ve Caught Your Spouse Cheating.
What does adultery mean in Tennessee divorce law?
Adultery means cheating. Adultery is grounds for divorce and can also be a factor for alimony determination. Adultery can be proven circumstantially, too. Courts don’t necessarily require proof of actual sexual relations. In general, there needs to be more than just an emotional relationship. For example, if a couple is getting a divorce and a spouse went with a co-worker to the British Virgin Islands and shared a hotel room, that may be enough to prove adultery for two purposes: grounds for divorce and fault for alimony. For more information, see How Much Can an Extramarital Affair Cost Under Tennessee Divorce Laws?
COLLECTION OF ALIMONY
What if a spouse refuses to pay spousal support?
The recipient spouse can initiate legal action to compel payment of alimony. Typically, this involves filing a petition for civil contempt, criminal contempt, or both. In very general terms, proving contempt requires proof of an order to pay alimony and a willful violation of that order – that is, failure to pay. If the recipient spouse proves the payor spouse has the present ability to pay support, but chooses not to pay, then that is civil contempt. If the recipient spouse proves the other spouse had the ability to pay at the time payments were due, but chose not to pay, then that is criminal contempt. In criminal contempt proceedings, the owing spouse has the same rights as a person accused of a crime. With criminal contempt, the person who failed to pay support can be jailed as punishment for that failure to pay. With civil contempt, the person owing support can be jailed until payments are made. A defense to civil contempt is that the person who failed to pay alimony does not have the present ability to pay support. A defense to criminal contempt is that the person who failed to pay alimony could not have paid at the time payments were due.
Can I get attorney’s fees when seeking alimony in Tennessee divorce law?
As part of the Tennessee divorce process, supported spouses may seek a temporary alimony award for day-to-day living expenses, child support, and attorney’s fees. In many areas of the state, this is called a motion for pendente lite support.
How do I get attorney’s fees from my spouse?
When a spouse does not have independent access to attorney’s fees as part of the divorce process, he or she can negotiate attorney’s fees or file a motion with the court to order the other more propertied spouse to pay them. While the law provides for an award of interim attorney’s fees, in reality, the actual award will depend upon a number of factors, including access to marital funds, relative earning capacity, need for support, and ability to pay. Some judges are disinclined to make significant awards of attorney’s fees. Other judges will try to “level the playing field” and order the attorney’s fees be paid equally by both spouses.
In Shelby County, attorney’s fee application begins with a motion for temporary support heard by the Divorce Referee. The hearing before the Divorce Referee is a less formal proceeding, but the traditional rules of evidence still apply. If either spouse disagrees with the ruling, then he or she can appeal to the trial judge.
TYPES OF ALIMONY IN TENNESSEE
What is alimony in futuro in Tennessee divorce law?
Alimony in futuro (or periodic alimony) is long-term alimony awarded when there is a significant disparity in earnings and wealth, and when rehabilitation is not possible. 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 of living enjoyed by the other spouse. Over the last 25 years or so, that aspirational goal of the law has been consistently undercut. In practice, courts are more likely to expect an able-bodied, intelligent spouse to do more on his or her own. The vast majority of judges are not going to award an amount to make the lifestyles of the parties exactly equal post-divorce. To learn more about the role of lifestyle evidence, read Lifestyle Analysis.
Alimony in futuro can be modified by the court upon a showing of a change of circumstances. If the supported spouse lives with a third-party (as with cohabitation), then the court may consider this a rebuttable presumption that support may no longer be needed. Alimony in futuro automatically terminates upon the death of either party or upon the recipient’s remarriage. To read more about alimony in futuro, see Tennessee Alimony in Futuro (Periodic).
What is transitional alimony in Tennessee law?
Transitional alimony is the newest form of spousal support in Tennessee. It lasts only for a certain period of time and will otherwise terminate upon the death of the recipient or payor, unless otherwise specifically stated in the divorce decree. There may be a provision, for example, that alimony shall terminate upon remarriage of the recipient.
Transitional alimony cannot be modified. That is, unless the parties agree to make it modifiable at the time of the initial order of divorce. For many, transitional alimony will be an attractive option because of its certainty and predictability. Although no formal statistics have been compiled, transitional alimony is very likely the most popular form of alimony negotiated in settlements.
Can you give an example of Transitional Alimony?
Consider this example of transitional alimony:
Paul and Sarah married one year after graduation from the University of Tennessee at Knoxville and moved to Germantown, Tennessee. They separated after 17 years. Paul now earns $165,000 per year as a manager in an engineering firm. Sarah is a teacher, earns $32,000 per year, and will be primary residential parent to their three children ages 16, 14, and 9. At mediation, Sarah accepted Paul’s offer to pay her $2,250 per month transitional alimony for eight years in addition to child support, and Paul’s agreement to pay for each child’s college tuition, room and board, books, and fees equivalent to that amount charged by the University of Tennessee for in-state tuition.
For more information, see Tennessee Transitional Alimony.
What is alimony in solido in Tennessee divorce law?
Alimony in solido, also called lump-sum alimony, is a unique form of alimony. Alimony in solido is used most often to balance out a lop-sided property division, usually caused by a large indivisible asset going to one spouse (for instance, the marital home). The payments are either a single lump-sum or a series of payments over time.
Alimony in solido is not modifiable. Furthermore, the obligation does not terminate upon the death of the recipient or payor.
Can you give an example of alimony in solido?
Consider this example of 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. Unfortunately, neither Brad nor Susan have enough cash to pay the other for his or her share of the equity. So he can keep the house, Brad might offer to pay alimony in solido each month until the $40,000 is paid. If Susan accepts this type of alimony, then she cannot petition the court to increase the amount after the divorce because alimony in solido cannot be modified.
For further discussion, see Tennessee Alimony in Solido.
What is rehabilitative alimony in Tennessee divorce law?
Rehabilitative alimony helps a supported spouse obtain additional education, training, or experience to rejoin the workforce; and also to achieve a standard of living comparable to that enjoyed during the marriage or as expected to be enjoyed by the other spouse after the divorce. In application, most judges will find self-sufficiency is more the goal than equal standards of living after divorce.
As with alimony in futuro, rehabilitative alimony may be modified by the courts upon a showing of changed circumstances. Additionally, the length of the alimony award can be extended if it is shown that the recipient spouse did make a reasonable effort at rehabilitation, but that effort was unsuccessful. Rehabilitative alimony will terminate upon the death of the payor or recipient.
To learn more, see Tennessee Rehabilitative Alimony.
Can you give an example of an alimony award in divorce after a short-term Tennessee marriage?
Consider this alimony example:
John and Mary, a couple from Cordova, Tennessee, have been married five years. Near the beginning of the marriage, Mary quit college and got a job so she could help pay for John’s dental education. After finishing dental school, John found a new love and filed for divorce. Because the marriage was of short duration, the court must first try to put the parties back in the position they were in before the marriage. Obviously, John benefited from Mary’s sacrifices. A court might award Mary rehabilitative alimony for a reasonable time, say three to five years, to help her complete her college education.
Can you give an example of an alimony award in divorce after a long-term Tennessee marriage?
Consider this alimony example:
Steve and Jenny from Bartlett, Tennessee, have been married for twenty-five years and are getting divorced. Jenny started an accounting firm and is earning well into six figures. Steve teaches music at the local high school and was the primary caregiver for the children, now grown. Given his maturity, it may not be feasible for Steve to start over by going back to school. A court might award Steve alimony in futuro. If so, then Steve will receive a check until he or Jenny dies, or until he remarries or receives support from a live-in relationship.
Can a court award two kinds of alimony at the same time?
Yes. The court can award two types of alimony in a Tennessee divorce.
Can you give more examples of different types of alimony awarded for varying lengths of marriages?
Yes. Our Tennessee Family Law Blog’s Alimony category has case summaries of actual Tennessee appeals of alimony grouped by length of marriage. Find the approximate length of the marriage that is of interest to you. Research and read the cases there to find those parties’ incomes and circumstances that are as similar to yours as possible. Note that even though we have many, many cases listed, it is unlikely any particular case will be exactly like yours. Still, after learning the terms and general statements of law, sifting through the case summaries can be a great starting point.
What strategies exist to increase my alimony award or reduce my alimony exposure?
Successful alimony strategies are covered in greater detail in the following pages:
- Top 5 Tennessee Alimony Strategies in Divorce
- Strategic Use of Vocational Experts in Tennessee Alimony Divorce Cases
- Lifestyle Analysis By Forensic Accountant
TENNESSEE ALIMONY AND TAXES
Can I deduct alimony payments from taxes?
Possibly. Federal tax law can be very complex. Determining deductibility under federal income tax law may require interpreting specific language in the divorce settlement, which may be couched in Tennessee alimony terms. Always see a Certified Public Accountant or tax lawyer for proper advice for your particular situation. Very generally, for a taxpayer paying alimony to be allowed to deduct those payments from taxes, certain criteria must be met. Those criteria include:
- The recipient must be a spouse or former spouse;
- There must be a written divorce or separation instrument;
- Alimony must be made with cash payments (such as checks and money orders);
- Alimony does not continue after the recipient dies;
- The parties must live apart, residing in different households;
- The parties must file separate tax returns (they cannot file a joint return and claim the alimony deduction); and,
- The court ordered payment of alimony cannot state that payments are not deductible.
Importantly, adverse tax treatment could be caused by a “front-loaded” alimony obligation. This means tax law may deny deductibility of an alimony award if a significantly higher payment is owed in the short-term, immediately after a divorce. Alimony front-loading rules can be very complicated. For more information, consult with your CPA or tax professional about this.
Recipient spouses should also always seek tax advice from a CPA or tax professional before agreeing to a particular alimony agreement. When alimony payments are properly deducted by the payor, they are almost always income to the recipient. That means the recipient must pay federal income taxes on the amounts received and may need to make estimated payments quarterly to the IRS.
That means I can write off alimony from my taxes?
Possibly. Again, check with your CPA or tax professional. See the requirements above. For more information and references to helpful IRS publications, see Divorce and Taxes | Tennessee Divorce Law & Tax Resources.
What is the future of alimony in Tennessee?
Great question. While no one can predict the future, the prevailing conventional wisdom among those watching and commenting on this subject suggests that as the frequency of the traditional marriage (husband works; wife stays home and raises the kids) reduces over time, so will alimony as a societal goal. In Tennessee, no one expects a major change in the immediate future. While the concept of alimony may seem draconian and outdated to many, the practical reality is that the need for alimony still exists. This is so a supported spouse leaving the marriage will have some sort of assistance to make that transition.
TEMPORARY ALIMONY AND SPOUSAL SUPPORT
What is post separation support?
One reason for filing for divorce is so the court has authority to award temporary support until the divorce is either settled or tried. Tennessee courts have authority to award temporary alimony, child support, and attorney’s fees while a divorce case is pending. In most divorces, the primary goal of temporary support is to make sure that the status quo is maintained and existing mortgages and bills are paid.
Can I be awarded alimony before the divorce is final?
Maybe. While the divorce is proceeding, temporary alimony may be awarded. This is accomplished by a hearing on a motion for temporary support, commonly described as pendente lite support. Child support and attorney’s fees may also be determined at this hearing. The temporary alimony order ends when the final judgment for divorce is entered.
How long does it take to get temporary alimony?
That depends upon the county and the court procedure. In some Tennessee counties and courts, temporary support hearings can be set within a week or two. In others, it could take a month or longer. Check your court’s website and local rules for more information. To keep legal costs down, spouses are encouraged to work through their lawyers to try and resolve these and other issues.
How is the amount of temporary alimony determined?
There is no precise formula for calculating alimony. The court uses its discretion and crafts a solution on a case-by-case basis. In that process, the court generally considers the ability of one spouse to pay; and the needs of the other spouse to whom temporary alimony is sought to be paid. The court will look closely at the standard of living of the parties at the time of separation, too. The goal of temporary alimony is different from the goals of post-divorce alimony. Unless there is a compelling reason not to, existing mortgages and bills should be paid on time during pendency of the divorce. Normally, a court will allocate responsibility to pay existing financial obligations between the spouses. Often, child support and attorney’s fees are considered as well.
Can you give an example of temporary alimony?
A court may consider what child support should be awarded, determine what bills must be paid (mortgage, credit cards, utilities), and allocate monthly obligations between the parties. If the supporting spouse has additional money left over, then the court may award temporary alimony to the other spouse. This is to assist with personal living expenses, such as food, gas, clothing, cell phone, and attorney’s fees. Who is at fault for ending the marriage may not make a difference. But no two cases are alike. When spouses are living apart, it is more likely that there will be insufficient money to cover all of the monthly bills. In that instance, courts do their best to prioritize financial needs, focusing first on the needs of the parties’ children.
Does dating affect temporary alimony?
Possibly. Openly dating can impact negotiations for obvious reasons. What if the temporary alimony payor learns of the recipient spouse’s relationship with a third party before the divorce is finalized? If the alimony recipient is in a serious relationship, then the legal and factual question could shift to determining whether the boyfriend or girlfriend is giving support to or receiving support from the recipient spouse. If that is the case, it could be argued that support from the third party reduces or eliminates the recipient spouse’s need. In general, though, adultery and fault factors are not considered to be as important with temporary alimony as with the permanent alimony determination at trial.
Must a divorce be filed before temporary alimony can be awarded?
Yes. But a “bed and board” divorce could be filed, which would also allow for an award of temporary alimony. Divorce from bed and board is also called legal separation.
Can a supported spouse get attorney’s fees when seeking temporary alimony in Tennessee divorce law?
Yes. Tennessee’s alimony statute provides for an interim award of attorney’s fees. In fact, under Tennessee law the attorney’s fees for divorce are considered part of the alimony award and not part of the property division.
POST DIVORCE ALIMONY
Can Tennessee alimony be modified or terminated?
That depends. In a marital dissolution agreement the parties may agree to make alimony non-modifiable or, in the alternative, modifiable only under certain specified circumstances.
When the court orders alimony, whether it can be modified or terminated depends upon the type of alimony awarded and any other terms that the court spells out. For alimony in futuro or rehabilitative alimony to be modified, the court requires a material change of circumstances. Regarding alimony in futuro, if the person receiving support lives with a “friend,” then this might constitute a change of circumstances in certain situations. Be aware, too, that specific terms can affect the tax treatment of alimony.
For a more detailed discussion, read about Tennessee Alimony Modification Law | How to Modify Alimony in Tennessee.
What change in circumstances will support a petition for modification of alimony in Tennessee?
The possibilities are endless. A material change in circumstances might include increased or decreased ability to pay. Or a material change could be a substantial shift in the needs of either party, as with a serious illness that prevents a spouse from working. Upon finding a change of circumstance, the court will reconsider the supported spouse’s need and the supporting spouse’s ability to pay, along with the remaining statutory alimony factors.
When can I stop paying alimony in Tennessee?
For awards of alimony in solido and transitional alimony, the alimony payor can stop paying when the stated length of term ends pursuant to the court’s order. If the award is transitional alimony or alimony in futuro, and the recipient is living with a third person, then the payor can file an action seeking to modify or terminate the obligation based upon the rebuttable presumption that the recipient is either giving or receiving support from the third person. Finally, for alimony in futuro or rehabilitative alimony, the payor can seek to reduce or terminate the alimony obligation upon a showing of a change of circumstances or the need for an objectively reasonable retirement.
Can alimony be modified in Tennessee?
Only alimony in futuro and rehabilitative alimony can be modified to increase or decrease the amount of alimony and length of term of payment. Living with a third person can result in a reduction or termination of transitional alimony and alimony in futuro. Otherwise, transitional alimony cannot be modified. Finally, alimony in solido cannot be modified even if the alimony recipient is living with a third party.
Can an alimony order be terminated in Tennessee?
Yes, but it depends upon the type of alimony awarded and whether there are any special circumstances described in the court order. For example, death of the payor or recipient ends the obligation for all forms of alimony except alimony in solido. Remarriage ends alimony in futuro. Living with a third person could result in modification or termination of alimony in futuro and transitional alimony. Exceptions could apply to this answer depending upon your particular circumstances, so check with an experienced Tennessee family law attorney.
Can an alimony decree be enforced?
Yes. A contempt petition can be filed. Once an arrearage amount (the unpaid balance owed) is reduced to judgment, all other traditional legal actions for collection are available in addition to civil or criminal contempt.
Can I get attorney’s fees to seek an increase in alimony?
That depends. After a divorce, obtaining attorney’s fees before seeking an increase in alimony can be tricky. Some Tennessee judges may say there is no statutory basis to award attorney’s fees prior to granting an increase in alimony. If the application for more alimony is based on a very serious reason, say cancer treatment, then judges are more likely to award it. But if the application is based on a general need for more discretionary funds, then an award of attorney’s fees prior to obtaining an increase may be less likely.
Can I get attorney’s fees defending against a reduction in alimony?
Yes. In fact, if the defense against a reduction in alimony is successful, courts are more likely to grant an attorney’s fee application than at the conclusion of a divorce. This applies on appeal as well.
Memphis divorce attorney, Miles Mason, Sr., practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC. Buy The Tennessee Divorce Client’s Handbook: What Every Divorcing Spouse Needs to Know, available on Amazon and Kindle. To schedule your confidential consultation, call us today at (901) 683-1850.
References, Resources and More:
- Tennessee Alimony Law
- Tennessee Bar Association Family Law Section – Alimony & News
- 36-5-121. Decree for support of spouse. – TN.gov – Link temporarily broken
- Supreme Court of Tennessee – Alimony Law – Gonsewski Decision – Google Scholar
- You’ve Come a Long Way, Alimony
- In Many States, Alimony Reform Has Gone Too Far (Opinion)
- See our Tennessee Family Law Blog and our Tennessee Alimony category.