Getting Divorced? There Is Alimony in Tennessee, But It’s Complicated

In contemplating divorce, you are probably wondering whether there is alimony in Tennessee. Although not every jurisdiction provides for alimony per se, the Volunteer State certainly does. In fact, there is a substantial likelihood that at least one of the four possible types of Tennessee alimony available by statute will be awarded in any given divorce.

Getting Divorced? There is alimony in Tennessee, but it’s complicated

Are There Tennessee Alimony Guidelines To Follow?

Unlike child support, there is nothing entitled “Tennessee alimony guidelines” that carry force of law. And there is no exact mathematical formula to follow either when attempting to calculate the amount that should be paid. However, we do have statutory factors to guide the parties and the judge. Of all the relevant factors to be considered, and there are many, the most important are the obligor-spouse’s ability to pay alimony and the recipient-spouse’s need for financial support. Gonsewski v. Gonsewski, 350 S.W.3d 99, 110 (Tenn. 2011).

What Are Tennessee’s Alimony Factors?

For a closer examination of the factors applied in determining alimony awards, take a look at our discussion on Tennessee Alimony Factors in Divorce Law.

You should have a conversation about alimony with your divorce lawyer early in the representation. So you take away the greatest value from your attorney’s time and your money, prepare for that discussion by reading about Tennessee Alimony Law in Divorce | Answers to FAQs By a Memphis Lawyer. Attorney Miles Mason, Sr., also presents two interesting and informative YouTube videos on alimony strategy in general and alimony modification. Additionally, you can learn much by reading selected case summaries and judicial opinions culled from other Tennessee divorce cases.

How Do I Research Cases of Alimony Awards in Tennessee?

We have made researching alimony awards in numerous Tennessee cases easy for you to review. Just plug in the blog which sorts alimony cases by length of marriage. You will find case summaries and opinions with citations should you desire to read the case in its entirety.

How Do Tennessee Alimony Laws Work?

First of all, Tennessee judges have broad discretion in awarding spousal support in divorce or legal separation proceedings. More specifically, that discretion extends to the type of alimony awarded, along with the amount, and duration of payments. Unless the court came to a clearly unreasonable decision or erred in applying the law, an appellate court reviewing the case is unlikely to upset the trial judge’s final decision absent an abuse of discretion. This is in accord with the Supreme Court of Tennessee’s opinion in Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006) which states, in part:

“An appellate court in reviewing an award of spousal support is to determine whether the trial court applied the correct legal standard and reached a decision that is not clearly unreasonable.”

Secondly, if neither party brings the issue of alimony into the divorce proceedings, then an award of spousal support will be nothing more than a missed opportunity for the one who needed it. Why is that so? Because under Tennessee alimony law, a former spouse cannot file a separate lawsuit after the divorce seeking a new award of alimony. That window of opportunity was shuttered with the decree of divorce.

The Open Window, by Konstantin Somov

The prudent strategy is to always seek alimony in the divorce, even when the court’s award is expected to be de minimus. A minimal award may be financially insignificant to the obligor and to the recipient, but it does preserve the right to seek modification later. This is important.

Alimony Modification and the Court’s Continuing Jurisdiction

The court has continuing jurisdiction over its award of alimony and may revisit the order if a party files a motion for modification. With a show of “substantial and material change of circumstances” the court may then order an increase or decrease in the amount, or may make some other requested change to the order (for example, advance the termination date or alter the payment schedule from quarterly to monthly installments). If there is no alimony order, then the court has nothing over which it can exercise its continuing jurisdiction and, consequently, has nothing it can modify after the divorce. T.C.A. § 36-5-121.

Imbalance of Power in Alimony Negotiations

Given this essential aspect of Tennessee alimony law, it should not surprise anyone that the party who anticipates being ordered to pay spousal support might prefer to keep alimony out of the divorce altogether. Resistance is not atypical.

For instance, one spouse might offer the other more in the way of property in settlement, as a replacement for regular financial support after the divorce. This is particularly so when one party has attorney representation, but the other does not. Or when both parties represent themselves pro se, but there is an imbalance of power. As when one party is more sophisticated than the other about the financial aspects of divorce, or of life in general.

Power imbalances exist in many marriages for a number of reasons:  religious beliefs, mental health problems, histories of abuse and domestic violence, educational and cultural differences, physical infirmities, to name a few. In any of these situations, one spouse may develop as the dominant force in the relationship, while the other becomes submissive or acquiescent.

Select Alimony Examples of Power Imbalance

Understand that “power” is not always of a physical nature, although it often is between men and women. History is replete with very petite wives exerting extraordinary power over their husbands (no further explanation needed). Consider how the following power imbalances could influence alimony negotiations and mediation in the parties’ Memphis, Tenn., divorce:

● Religious Beliefs

What if one or both of the spouses are devout Christians? The wife’s adulterous relationship, for example, may be alleged as grounds for the divorce. The sin of adultery could also be the rationale used by the husband to convince her that she is unworthy of rehabilitative alimony because she violated God’s law. For purposes of this discussion, whether husband is sincere in his belief is less important than the power he wields over his wife

because of her belief. Convincing her that she is undeserving of financial assistance because of her acts might get him off the alimony hook, something he is strongly motivated to accomplish. If she does not have an attorney to consult with regarding the purpose of rehabilitative alimony, she may simply nod to her husband and surrender, concurring in her sinful nature.

An award of rehabilitative alimony has nothing to do with either party’s religious beliefs. On the contrary, such support is intended to assist the economically disadvantaged spouse in getting the additional education, training, and job skill development needed to achieve a standard of living reasonably comparable to what she was accustomed to while married. In other words, the purpose of rehabilitative alimony is to help her become self-sufficient and financially independent. T.C.A. § 36-5-121(d)(2).

● Mental Health Issues

What if a spouse is or was being treated by a psychiatrist or psychologist for a mental health problem? The “normal” wife could use her husband’s vulnerability to convince him to pay lump sum alimony, a form of long term spousal support possible under T.C.A. § 36-5-121(h)(1). Or perhaps wife desires alimony in solido in excess of what she would otherwise be entitled to in an equitable division of their property.

The husband who suffers with post traumatic stress disorder (PTSD), for instance, may be unable to cope with any courtroom drama should the issue of alimony go to trial. From his perspective, the idea of an actual trial may be far more anxiety-provoking than the thought of making regular support payments to his former wife. Knowing that her husband would do anything to avoid a trial could put wife in an unreasonable position of power given the circumstances.

Many people with mental health issues are still discriminated against in this country, despite applicability of the Americans with Disabilities Act (ADA) to certain mental impairments. Knowing this, the spouse receiving treatment for a DSM-V mental disorder might do whatever the other spouse asks to avoid having his mental health records disclosed in court during the divorce and related proceedings. (DSM-V refers to the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.)

● Domestic Violence

What if there is a history of domestic violence with this couple? Statistically, most victims of domestic violence are women. This was recently confirmed by the Tennessee Bureau of Investigation in its 2013 report (Domestic Violence 2010-2012 Statistics).

In a marriage where the husband has abused his wife – physically, sexually, or psychologically – she may be fearful of a repeated attack and be quick to avoid any conflict in the divorce. Her psyche may be so affected by years of abuse that she will do anything to avoid ongoing ties to her ex. Or she may be so conditioned by the consequences of crossing him that she will accept whatever he says, regardless of whether doing so clearly goes against her best interests. She may simply just want out of the marriage at all cost.

Husband may refuse transitional alimony for her, for example, to avoid paying her money and, perhaps, to make her suffer immediate financial hardship as just one more consequence of the relationship. (When rehabilitative alimony is not necessary, transitional alimony may be awarded to the “economically disadvantaged spouse [who] needs assistance to adjust to the economic consequences of divorce.” T.C.A. § 36-5-121(g)(1).)

In mediation, as discussed below, this is precisely the type of power imbalance that mediators are trained to look for and address as facilitator.

●Cultural Differences

What if there are cultural differences between the spouses? Consider, for example, the U.S. service member who files for divorce from her Iranian husband after a two-year separation. He may refuse her request for alimony in futuro because she failed in her duties as a wife without legitimate reason. That is an example of a cultural reason to reject alimony, but it is not a legal justification under Tennessee law.

Alimony in futuro is long-term support for the economically disadvantaged spouse. Usually, such periodic alimony will continue until death or remarriage of the recipient-spouse (or the award could terminate with cohabitation). T.C.A. § 36-5-121(f)(1).

Bringing balance to the negotiating table.

Negotiating and Mediating Alimony

In a divorce, the attorneys can bring balance to the negotiating table when the two parties have grossly unequal bargaining power. The parties may participate in mediation, too.

Briefly, mediation in Tennessee divorce is commonly used to assist couples in arriving at agreements. Mediation is a respected form of alternative dispute resolution (ADR), one widely used in the majority of jurisdictions when conducting family law proceedings. Recognizing an imbalance of power, the mediator should be prepared to implement techniques during ADR to equalize the participants’ strengths and weaknesses. (No trained, licensed mediator worth his salt will be oblivious to power struggles between spouses, especially when they have a known history of domestic violence!)

One such technique is caucusing, wherein the mediator meets privately to caucus with each party. Thus reducing the need for joint sessions with both parties where one spouse has an opportunity to assert control over the other (or intimidate the other into acquiescence). Not only can caucusing break through an impasse in settlement talks, it can prevent one spouse from using mediation as a tool to dominate the other party in the divorce proceedings.

The best advice we can offer in this regard is that you consider hiring an experienced alimony lawyer in your Tennessee divorce. When mediation is implemented, the divorce attorney can assert the need for power-balancing by the neutral facilitator. The attorney can also challenge the mediated agreement if it is unreasonably biased in favor of the dominant party as against the client.

One Last Thought…

An offhand decision to save a few dollars by not hiring an experienced alimony lawyer almost always backfires, leaving a spouse holding the short end of the proverbial stick regarding post-divorce financial support. A mistake in handling alimony (asking too little, asking too much, or not asking at all) could have long-term consequences that are beyond remedy in the future.

When it comes to Tennessee alimony, sometimes true wisdom is in appreciating how much you don’t know and asking for help from someone who does.