Ending Tennessee Alimony Due to Retirement
Ending Tennessee Alimony Due to Retirement
Miles Mason, Sr. wrote this cover story for the October 2016 Tennessee Bar Journal, “Retirement May Have to Wait” 52 Tennessee Bar Journal, 10 (Oct. 2016). Copyright 2016 Tennessee Bar Journal and Miles Mason Family Law Group, PLC. Reprinted with permission.
By Miles Mason, Sr.
“Alimony in Futuro? Shoot.” Every time we schedule a consultation for an alimony modification action, I dread it. It evokes an emotional response like my feelings for Apocalypse Now, the widely acclaimed Vietnam War movie. Sure, Apocalypse Now is arguably one of the best war movies ever made, but it’s very stressful to watch. In the film, a special operations soldier is ordered to assassinate Colonel Walter Kurtz, a U.S. officer whose methods have become “unsound.” Thematically, the movie exposes many of the Vietnam War’s contradictions. In the opening scene, we hear The Doors performing “The End.”
With an alimony in futuro award, when is the end? Or is this the beginning? Approaching Colonel Kurtz’ alimony in futuro compound up river, I can hear the protestations:
“Get a job? Now? Am I to be a Walmart greeter?
“Why is that loser’s retirement my problem?”
“I’m nobody’s slave. I will go to jail before I work just to pay her.”
“Stop paying me alimony? My alimony is for life!”
“Alimony can’t just stop. I depend on that money. It’s mine. I have a court order!”
“What happens to me when the money runs out?”
“Let me get this straight. I’m retired. I don’t have income. I can’t cover all my living expenses. But I still have to pay alimony?”
“My career was raising our kids. I’ve never worked. How can I start now?”
“Everybody retires. That’s no excuse for not paying me what I’m owed!”
“What’s going to happen to me? I’ll die broke!”
Is not everyone entitled to retire someday? If so, then isn’t a former spouse who either negotiated for or was awarded alimony in futuro entitled to rely on the court’s order? If yes, then for how long?
In Tennessee, alimony in futuro means alimony as long as both live or until remarriage of the recipient. When alimony is ordered in a divorce, retirement later on could impact both ability to pay and need to be supported. Among retirees, petitions to modify and reduce, increase, or terminate alimony are expected to be more common as our Boomers age.
Alimony law is evolving nationally even if change has been more incremental for Tennessee after Bogan v. Bogan. In large part, U.S. demographics are influencing these trends along with changing norms. Divorced Baby Boomers are retiring in huge numbers. Nipping at their heels, early Gen X-ers are in their 50s. In almost every case, post-divorce retirement upsets the status quo. For some, it’s financial upheaval.
Need for Alimony Guidance in Retirement Cases
Retirement-based alimony modifications can be troubling for the families who must live with the results, as well as for the attorneys and judges. We see the courts struggle to balance the equities and avoid financial hardship, so modified alimony orders do not result in “winner take all.”
Both parties are typically at an age where their best and highest income-producing years are past. Any increase, decrease, or termination of spousal support could be economically devastating to one or the other, depending upon the circumstances.
Need is a factor, yet the alimony in futuro recipient could lose support at the precise time in life when alimony represents every dollar of the person’s income beyond Social Security. Ability to pay is a factor, yet the retired obligor could be ordered to increase payments to support a now chronically ill former spouse. This is possible, despite the obligor’s having no additional income to draw from and may be struggling with health problems, too.
Ability to Pay Alimony Based on Assets or Income
Following retirement, the obligor’s ability to continue paying support may be based almost exclusively upon assets and not income. Even when the obligor is not earning, Tennessee law is clear that the trial court can include assets in its consideration. This means that alimony could last until death which is rough, but may be necessary.
In 2005, for instance, the Tennessee Court of Appeals in Richards v. Richards  affirmed denial of the former husband’s petition to modify alimony following his retirement. Having been phased out of his radio ministry, his involuntary retirement was objectively reasonable under the totality of the circumstances. His former wife retired after being diagnosed with late stage lymphoma. A good steward of the marital assets awarded her in the divorce, she still had need for support. By contrast, the former husband had remarried, inherited and lost $222,000.00, and taken on new debt. A problem for him, it is settled law in Tennessee that “obligations voluntarily assumed are not proper to be considered as changed circumstance[s] to reduce support payments otherwise owed.” His petition to reduce support because of his “forced” retirement was denied, despite his having to liquidate a substantial asset to satisfy his current alimony obligation.
Assets Awarded in Divorce Are Considered in Tennessee Alimony
Are assets allocated in the division of property at divorce, along with assets acquired separately post-decree, considered in modifying alimony for retirement purposes? Yes and no. The Richards court noted that “[a]ny income produced [from assets] awarded to a spouse in the division of marital property should not be a factor in determining whether or not a change of circumstances existed to warrant a modification of periodic alimony payments.” But if other reasons for changed circumstances sufficiently exist, then assets awarded in the divorce may be considered in the 12-factor alimony modification analysis in Tenn. Code Ann. § 36-5-121(i).
In applying the 12 alimony factors in Odom v. Odom, though, the parties’ net worth was substantially equal at the time the retired orthopedic surgeon filed his petition to terminate alimony. In reversing the court below, the appeals court terminated alimony in part because the recipient no longer needed support (“Wife’s needs seem to be more than met by her assets”). Both parties’ assets were considered, whether allocated in the divorce or not.
TENNESSEE LAW ON TERMINATION OF ALIMONY
Generally, once the 30-day period of appeal from the trial court’s final decree has passed, the circumstances permitting post-decree support modification can be limited. Predictably with retirees, alimony modification proceedings are initiated years, sometimes decades after the divorce.
Bogan v. Bogan: Reducing or Terminating Alimony Upon Retirement
In 2001, the Supreme Court of Tennessee held in Bogan v. Bogan that when the final decree did not specifically address modification of alimony following voluntary retirement, an objectively reasonable retirement taken in good faith, without intent to defeat the support obligation constitutes changed circumstances so that modification of the support obligation may be considered.  The Supreme Court’s holding in Bogan waved in a different analysis to the alimony modification on retirement issue.
The Bogan court further held that “a bona fide retirement need only be objectively reasonable under the totality of the circumstances to constitute a substantial and material change in circumstances.”
Any petition to end or reduce alimony upon obligor’s retirement is a request for relief from post-decree alimony. In that regard, it’s no different than a supported spouse’s request for an extension of rehabilitative alimony to finish one more year of nursing school. (If the former spouses’ marital dissolution agreement (MDA) specified a date alimony shall terminate, then either party could still seek modification unless the MDA is specifically nonmodifiable.)
Two Ways Tennessee Alimony Terminates
The court’s continuing jurisdiction over alimony allows it to reconsider, recalculate, and modify orders. In deciding whether modification should be explored, ask when alimony would otherwise terminate under the original order. Although details vary with MDAs, there are essentially two ways alimony terminates:
- Termination by operation of law. Alimony terminates upon a certain date or event (obligor’s death or recipient’s death, remarriage, or cohabitation). For example, alimony in futuro is ordered at $5,000.00 per month for life or upon the supported spouse’s remarriage.
- Modification because of substantially changed circumstances. For example, the initial alimony in futuro order amount of $5,000.00 is terminated due to obligor’s retirement (or is reduced to $2,500.00).
Whether seeking reduced or terminated alimony, the main objective for the retired obligor is, in general, to minimize expenses in keeping with a substantially reduced retirement income. But alimony modification at retirement isn’t just about income. It’s about retirement assets, income producing assets, projected investment returns, and reasonable need for living expenses, too.
Post-Bogan Modification of Tennessee Alimony Analysis
In the context of retirement, Bogan rejected the traditionally required proof of involuntary and unforeseeable change in circumstances before alimony modification could even be considered by the trial court. Instead, we have a three-part test that, despite superficial simplicity, is challenging to implement without more guidance:
- The court must find that obligor’s retirement was objectively reasonable under the totality of the circumstances. (That does not mean, however, that the petitioner is not also motivated by a desire to reduce or avoid paying alimony.)
- The court must determine whether retirement created a substantial and material change in circumstances. (Appellate decisions after Bogan seem not to have interpreted an objectively reasonable retirement to be a de facto substantial and material change of circumstances.)
- The court must then determine whether alimony should be reduced by applying the 12 alimony factors in Tenn. Code Ann. § 36-5-121(i), the same factors used to establish alimony in the divorce. Importantly, the two most important factors are the recipient’s need for support and the obligor’s ability to pay support. Both factors must be given equal weight.
Retirement-based alimony modification under Bogan is an open-ended problem, unsolvable and without direction – a rudderless ship that must be sailed. Beyond telling what the law is, Bogan gives very little guidance.
In alimony termination hearings, Tennessee judges are essentially asked to perform financial planning for retirement analysis. They must balance what is fair in the mind of the judge against what the numbers may suggest. Judges can be faced with a battle of two competing expert witnesses. Each testifies as to financial projections. Spreadsheets are ablaze with assumptions involving projected rates of investment returns, reasonable need, and life expectancies. What is fair? What will the future bring? Who goes broke? Who dies broke? Isn’t dying broke the goal? Why doesn’t Tennessee law tell us what should happen?
Appellate opinions have provided little guidance since Bogan. Tennesseans need a legal standard that is workable. Given national alimony trends and Tennessee’s aging divorced population, should alimony modification upon retirement be addressed and updated by the general assembly or by the courts?
Retirement as Substantial and Material Change in Circumstances to Stop or Modify Tennessee Alimony
With the final decree, alimony was based upon circumstances existing at the time of divorce and circumstances reasonably anticipated or foreseeable. With alimony modification, the petitioner has the burden of proving permanently changed circumstances from those existing at the time of the final decree.
The standard for modification of alimony generally is a change in circumstances that is both substantial and material. Arguably, obligor’s retirement represents a permanent, relevant, substantial and material change in circumstances. A request for modification does not always come from the obligor, though. The recipient’s retirement, deteriorating health, or other situation could be motivation to seek more money from the obligor or, alternatively, extend the period of payments for a longer support window.
Here’s how to begin analyzing each scenario:
Recipient’s Modification Petition
On the one hand, when the alimony recipient seeks modification, do changed circumstances relate to that former spouse’s need? If yes, then is that change material and substantial? If also answered affirmatively, then the supported party’s request for modification warrants consideration under the court’s continuing jurisdiction over alimony orders.
Obligor’s Modification Petition
On the other hand, if the alimony obligor is seeking modified alimony orders, do the changed circumstances relate to that former spouse’s ability to pay? If yes, then is the change material and substantial? If also answered in the affirmative, then obligor’s request for modification of support warrants consideration by the court.
Are Changed Circumstances Material and Substantial?
In the ordinary modification case, use the statute to assess changed circumstances. “When assessing the issue of modification of alimony awards, trial courts are directed to consider the factors contained in Tenn. Code Ann. § 36-5-121(i)(2005) to the extent that those factors are implicated by the evidence.” Absent a showing of inability to pay, the increase in obligor’s expenses alone is not enough to support a finding of material and substantial change of circumstances.
By contrast, with retirement offered as the substantially, materially changed circumstance forming the basis for obligor’s desire to reduce or end alimony payments forever, modification means jumping through a few more hoops. Explaining this to mature clients may be met with a wide-eyed look of baffled disbelief, along with cringing and teeth gnashing. Why? Because retirement is often the biggest income and lifestyle change people experience. One planned for over a lifetime. But that’s only one aspect of obligor’s burden in proving the case and showing need for economic relief. The recipient’s economic needs must be considered, too, and those may also have changed since the divorce.
Carrying the Burden of Proving Retirement as Substantial and Material Change of Circumstances for Modification of Alimony in Tennessee
Sometimes leaving the workforce for good represents changed circumstances sufficient for modification, sometimes it does not. Cancer, old age, and retirement do not guarantee modification. Freeman v. Freeman is a case in point.
About 14 years after Freemans’ divorce from a 27-year marriage, the former dentist/orthodontist petitioned for modification or termination of his alimony in futuro obligation. He failed to carry the burden of proving he had experienced a substantial and material change in circumstances as a consequence of retirement. The 70-year-old retiree “has had colon cancer,” but it was determined he still had ability to continue working part time. The ex-wife still needed support and, importantly, ex-husband had assets from which he could draw to pay his monthly alimony obligation.
The petitioner in Freeman “failed to provide a factual basis from which this Court can compare his circumstances as they existed at the time of the trial court’s Final Decree of Divorce ordering paying of alimony, to his present day circumstances.” The lack of evidence, past and present, meant the court could not determine whether any substantial and material change had occurred since the divorce decree.
This case illustrates, first, the importance of petitioner being a forthright, credible witness at trial if weight is to be given his testimony and evidence. Secondly, the importance of reliable and sufficient evidence of current income and ability (or inability) to work. The obligor’s testimony that “I can’t pay” did not carry his burden of proof. It didn’t help that he was also held in civil contempt for nonpayment of alimony.
Retirement Contemplated in the MDA Alimony Provision
Did the parties consider the supporting spouse’s retirement in negotiating their MDA? Does the MDA render alimony nonmodifiable? Then retirement is not likely to be a changed circumstance sufficient to form the basis of a post-decree alimony modification or termination.
When the MDA allows for modification upon obligor’s retirement, a petitioner must still prove materially and substantially changed circumstances. Proof of changed circumstances is always required to extend, terminate, or otherwise modify alimony.
Alimony modification cannot be based on some future potential for changed circumstances. Retirement put forth in the petition, along with any other changed circumstance, must be a present reality, not mere possibility or future likelihood.
Bona Fide Retirement
Quoting the Tennessee Supreme Court in Bogan, a “bona fide retirement of an obligor constitutes a substantial and material change in circumstances so as to permit modification of a spousal support award when the decision to retire is objectively reasonable considering the totality of the circumstances.” Clearly, the inquiry does not end there.
Was this a bona fide retirement? When is the decision to retire objectively reasonable? What are the totality of the circumstances? These questions must be answered with evidence, not a statement of “I can’t pay.” Because any possibility of modification depends upon the initial alimony award, we need to start there and discuss Tennessee’s two rules.
Tennessee’s Two Rules in Determining Alimony
There are two rules in determining alimony, one for establishing alimony in the divorce and one for modifying alimony thereafter with retirement as a subset of the latter. The controlling statute is Tenn. Code Ann. § 36-5-121, which is where we begin the analysis.
Rule When Establishing Alimony in Divorce
The initial alimony award is determined at the time of the divorce. The most important considerations in establishing alimony are the supported spouse’s need and the supporting spouse’s ability to pay. Then, courts are directed to consider the statutory factors and make findings of facts on each that apply.
Rule When Modifying Alimony After Divorce
When modifying alimony, the court should give equal consideration to both the recipient’s need and the obligor’s ability to pay. Equal consideration in comparative need represents the beginning of our modification analysis based on retirement as changed circumstances.
The question must be asked whether changed circumstances occurred after entry of the original alimony order or not. When circumstances did change after the final decree, the ordinary modification analysis bifurcates from retirement-based modification. In an ordinary modification, the next step in the inquiry is determining whether the changed circumstances were foreseeable at the time of the initial alimony order. If they were, then modification should not be allowed.
By contrast, in the retirement-based modification and under Bogan, the bona fide, objectively reasonable retirement should be a substantial and material change of circumstances, whether retirement was foreseeable at the time of divorce or not.
After determining substantial and material change of circumstances, we rejoin the ordinary modification analysis and realign with the 12 factors in T.C.A. § 36-5-121(i). The party seeking to have the alimony order changed must now prove why modification is needed.
Additionally, the judge may consider the retired obligor’s current financial situation and future ability to pay support to the former spouse. In that process, the court may consider obligor assets that might be liquidated with the proceeds used to pay the support obligation. This is not something that most retired clients want to hear. Nonetheless, having to liquidate assets to satisfy an alimony obligation is a possibility if modification is not granted after retirement.
What about Social Security? Tennessee law says that with modification or termination of alimony in futuro, receipt of Social Security should not be considered a change of circumstances. This is so whether the alimony recipient, payor, or both are also receiving Social Security. The reason being that Social Security was foreseeable at the time of divorce. However, in the modification context, in terms of determining reasonable need going forward (on the amount of modification), Social Security can be considered in the financial analysis.
Modification of Alimony When Recipient Lives with a Third Party
Another circumstance relating to retirement is modification or termination of alimony based upon reduced need where the recipient is living with a third party –whether cohabiting as man and wife or sharing the household with a family member.
As discussed previously, with modification of alimony the recipient’s need is an equally important factor for the court to consider against the obligor’s ability to pay. Should recipient decide to live with a third party or cohabit, then there is a rebuttable presumption that the third person is either contributing to living expenses or is being supported by the alimony recipient. Applying Tennessee’s 12 alimony factors, the former spouse’s need for support may prove to be less or non-existent from what was previously ascertained at divorce. If recipient’s need has been eliminated by her living with someone or cohabiting, then alimony in futuro or transitional alimony may be reduced or terminated.
Number a Person Needs to Retire With in Order to Die Broke
In the interrelationship between alimony and retirement, one concept needs explanation – that is, The Number. The Number defines the amount a person needs to retire with in order to die broke. To project the amount of money a person needs to retire, examine monthly expenses and life expectancy. This is something a Certified Public Accountant (CPA) or Certified Financial Planner (CFP) can help with. How much money the person needs to retire depends upon the person’s retirement lifestyle and projected annual investment return.
Consider this example: Assume the person is already retired. If she spends $4,000.00 per month, has a pension that pays $1,000.00 monthly, and Social Security retirement that pays $1,200.00 monthly, then she will need to tap her IRA for $1,800.00 each month to make up the difference. Additional expenses that are not discretionary should also be considered, such as out-of-pocket healthcare costs that exceed Medicare benefit coverage and over-the-counter healthcare or medical supplies.
Calculating How Much to Retire With to Die Broke
“Dying broke” is a popular assumption among many financial advisors’ retirement analysis calculations. There are many different financial retirement models from which to choose. Use this process to calculate “the number” of how much money an individual needs to save up to retire with and ultimately die broke. First, figure out how much the person will need to spend (monthly or annually). This baseline is the amount the individual currently earns and currently spends, so start with that figure. Second, adjust for cost of living once retired. From the baseline, deduct:
- What the person has been saving each month; and
- What the person has been paying in income tax.
Then factor in the following:
- Change in lifestyle once retired; and
- Change in what the person spends on any children.
Lastly, adjust for healthcare coverage under Medicare which does not cover everything. The resulting amount could be more or less than what the person was paid while working. From there, pull the statistics for the person’s life expectancy, or longevity.
Life expectancy at birth is the average number of years a person can expect to live. “In 2014, life expectancy at birth was 78.8 years for the total U.S. population – 81.2 years for females and 76.4 years for males, the same as in 2013.” In the demography of aging, life expectancy is the product of statistical extrapolation from mortality rates. Projecting life expectancy trends involves extrapolating into the future based on historical data. Imperfect, yes, but the data represents the best guess.
There’s more. Life expectancy at age 65 is not the same as life expectancy at age 20. Once a person reaches 65, he or she has a much better chance of reaching 90. For instance, the 65-year-old female has a 53% chance of living to age 85; and a 32% chance of living to age 90. The 65-year-old male, by comparison, has a 41% chance of living to age 85; and a 20% chance of living to age 90.
There are other factors to consider: personal health and fitness habits, congenital disorders and hereditary diseases. The SSA website has an online life expectancy calculator, among others. Age, sex, height, weight, daily alcohol consumption, tobacco use, blood pressure, and family history are relevant to calculating a particular person’s life expectancy.
With that information, the obligor should have a reasonable idea of how much money is needed to save up in order to retire, personally, and calculate what the net present value of the amount of money the supported spouse will need if alimony continues until her death. Tennessee law does not direct the court to determine who, if anyone, should die broke. These are all just numbers on a page. In a court hearing in which evidence and arguments must be presented, this type of retirement analysis is all we have.
We Can Hear Choppers in the Jungle. Do Our Contradictions Define Us?
Modifying or terminating alimony upon retirement is not just about obligor’s changed income. Both parties’ income and assets are important, but modifying or terminating alimony orders at this late stage of the parties’ lives is also necessarily about limitations, lots of them.
Social Security and Medicare, Medicaid and TennCare, serious illness, long-term care, and increased vulnerability concerns because of dementia, Alzheimer’s, and disorders affecting mental capacity are big issues.
When limited financial resources and the declining health of both parties are factored into a request to terminate alimony or change the support amount, things can get messy with potentially unfair results for some former spouses.
Given these and other challenges discussed herein, alimony termination matters can be very expensive to try. Providing the parties’ financial positions at the time of the divorce to the date of the petitioner’s application to terminate or modify alimony can get very complicated. Judges struggle with balancing the obvious need of the obligor to stop working at some point and the general right of any person to retire, against the genuine needs of the recipient and that former spouse’s right to count on financial support. Judges need more guidance after Bogan. There needs to be greater predictability in these cases for everyone.
America’s Baby Boomers are retiring at a phenomenal rate with about 10,000 turning 65 each day. Just like Apocalypse Now, there is a scene in which we see and hear the Air Cavalry destroy the village, at the same time there are soldiers surfing. In retirement and alimony in futuro, the contradictions steal the scene. In this zero sum financial analysis, one dollar earned becomes one dollar spent. No one wins this war.
 For a general alimony resource including this topic, see the Alimony Bench Book published by the Tennessee Bar Association Family Law Section. It is a free download for TBA members at http://www.tba.org/section/family-law-section.
 “Generation X refers to American adults … born between 1961 and 1981.” Jon D. Miller, University of Michigan, The Generation X Report, Vol. 1, Issue 1, Fall 2011.
 Id. at *9 (quoting Dillow v. Dillow, 575 S.W2d 289, 291 (Tenn. Ct. App. 1978)).
 Id. at *11 (quoting Norvell v. Norvell, 805 S.W.2d 772, 775 (Tenn. Ct. App. 1990)).
 Bogan, 60 S.W.3d at 729.
 Id. at 725.
 Court’s continuing jurisdiction over alimony orders is set forth in Tenn. Code Ann. § 36-5-121(a) and again in § 36-5-121(e)(2) and § 36-5-121(f)(2)(A).
 This is so despite the Bogan court’s explanation that “when an obligor is able to establish that a retirement is objectively reasonable, and therefore that it constitutes a substantial and material change in circumstances …” Bogan, 60 S.W.3d at 730 (emphasis added).
 There are three notable pre-Bogan cases: Bowman v. Bowman, 836 S.W.2d 563 (Tenn. Ct. App. 1991), Brewer v. Brewer, 869 S.W.2d 928 (Tenn. Ct. App. 1993), and McCarty v. McCarty, 863 S.W.2d 716 (Tenn. Ct. App. 1992).
 Modification of alimony in futuro (periodic alimony) requires a “substantial and material change in circumstances,” Tenn. Code Ann. § 36-5-121(f)(2)(A), as does rehabilitative alimony per § 36-5-121(e)(2).
 Hartman v. Hartman, No. E2005-00010-COA-R3-CV, 2006 WL 2135454, at *5 (Tenn. Ct. App. July 31, 2006).
 147 S.W.3d 234 (Tenn. Ct. App. 2003).
 Bogan, 60 S.W.3d at 734.
 Freeman 147 S.W.3d at 238.
 Cf. Janet L. Richards, Richards on Tennessee Family Law, § 12-8(b) (3d Ed. 2015): “[R]ecipient’s need is the most important factor in determining the initial award of alimony…”
 Bogan, 60 S.W.3d at 730.
 In Bogan, “we reject, in the retirement context, the traditional test requiring an involuntary and unforeseeable change in circumstances to modify a support award.” Id. at 725.
 The alimony recipient’s receipt of Social Security is not grounds for a change of circumstances. Social Security may be considered when determining whether alimony in futuro should be modified or terminated. See Norvell v. Norvell, 805 S.W.2d 772 (Tenn. Ct. App. 1990) (appeal denied).
 See, e.g., Malkin v. Malkin, 475 S.W.3d 252, 263-64 (Tenn. Ct. App. 2015) (Although his retirement constituted a material and substantial change in circumstances, payor’s request to reduce alimony in futuro was rejected on appeal. The payor’s retirement income, including Social Security, plus retirement assets were such that he had the “ability to pay” his current alimony obligation. Modification denied, rev’d).
 Alternatively, the person may liquidate assets or take a part-time job that satisfies SSA requirements without reducing retirement benefits.
 Social Security is foreseeable and not a material change of circumstances. See Hasty v. Hasty, M2002-01756-COA-R3-CV, 2003 WL 21954190 at *1-2 (Tenn. Ct. App. Aug. 15, 2003).
 The trial court described “’numerous days of testimony’ and ‘excessive amount of legal energy, talent, and expenses consumed and invested into this proceeding on both sides[.]’” Malkin, 475 S.W.3d 252 at 256.