Alimony Has a Long History in Tennessee Divorce

Tennessee alimony has a rich history, just as it does in many southern states. But have you wondered how alimony came about in the Volunteer State?

Tennessee Alimony Then and Now

To begin, alimony law made its way to America with the British colonists. Sailing across the Atlantic Ocean with English common law.

The Chancery Courts of England were ecclesiastical courts and, as courts of equity, they could award alimony to a wife. Tennessee’s Chancery Courts are also courts of equity. To this day lawsuits for divorce, separate maintenance and alimony are considered to be Chancery proceedings whether tried in Circuit Court or Chancery Court.

History of Temporary Alimony in Tennessee

Alimony has a long and rich history in Tennessee divorce. In 1873, John C. Brown was Governor and Tennessee alimony was common law.

As early as 1873, Tennessee courts sitting in equity were awarding temporary alimony for support and “suit money” (costs of litigation) to spouses. This was at a time when there was no Tennessee alimony statute. Lishey v. Lishey, 2 Tenn. Ch.1 (1873); Winslow v. Winslow, 133 Tenn. 633, 182 S.W. 241 (1916) cited in Gonsewski v. Gonsewski, M2009-00894-SC-R11-CV (Tenn. 2011).

For the most part, an award of pendente lite alimony, or temporary alimony, simply reflected the husband’s legal obligation to support his wife. After all, during pendency of the divorce the couple was still married. Because the husband had not yet shaken his duty to support his wife, he could be ordered to pay temporary alimony for her shelter, food, clothing, and maintenance.

By contrast, a husband’s duty to support his former wife was not so clear cut. Permanent alimony was awarded as a kind of “duty-to-support substitute” after the marriage had been dissolved by divorce. In a way, the husband’s obligation to provide for his wife dissolved with the marriage. The consequences for the wife, of being left without support after the divorce was final, only exacerbated a great many economic inequities between the sexes.

At a time when women had few opportunities to work and earn a living on their own, permanent alimony could keep the wife from being tossed out into the street, penniless. Having been a homemaker, she was often unskilled with little chance for financial independence. Hence the equitable need for permanent alimony in many cases. Especially if the husband’s misconduct was to blame for the failed marriage, as with abandonment.

Temporary Alimony TODAY

Temporary alimony is frequently awarded in pending divorces today. The court has discretion to order pendente lite support to an economically disadvantaged spouse for a number of reasons:  to assist with living expenses, vehicle installment payments, college tuition payments, apartment rent, and moving expenses, to name a few. Be mindful that temporary alimony is not part of the property division in a Tennessee divorce, nor is it deducted from permanent alimony. T.C.A. § 36-5-121(b).

Tennessee’s History of Divorce From Bed and Board

Tennessee alimony, the support and maintenance of one’s spouse, has its roots in the husband’s common law duty to support his wife. Common law being case law, the law of precedent. With very few exceptions, marriage was a permanent bond that only the death of a spouse could terminate. Death allowed the widow or widower to remarry.

“Until death do us part” was neither symbolic language nor a temporary promise. It was a vow with substantial legal repercussions if violated, often discovered a tad late by the spouse who broke it.

After divorce a mensa et thoro, also known as divorce from bed and board, one of those consequences for the husband was to continue supporting the innocent wife who had been wronged. The divorce a mensa et thoro also arrived with the English ecclesiastical courts.

In 1932, with the nation blanketed by the Great Depression, the state’s early Tennessee Code § 8427 (now superseded) gave the court authority to grant spouses a divorce from bed and board. This divorce a mensa et thoro was also referred to as a “limited divorce” because the spouses were still married to each other after the proceedings were finalized. In the past, Tennessee alimony was sometimes awarded to an innocent wife in the limited divorce.

If the marriage failed because of some fault of the husband (having engaged in adultery, for example), then his obligation to support his wife and children continued even though they no longer lived under the same roof. Separation or divorce were sufficient for an award of alimony, assuming the husband was at fault for the marriage breakdown. If both parties were at fault for destroying their marriage, then alimony for the wife was less assured. In such a situation, she could become destitute overnight. And with the mindset of the times, it would have been her own fault.

Divorce From Bed and Board TODAY

Tennessee no longer recognizes divorce from bed and board. In many states, such as North Carolina, Virginia, and New Jersey, divorce from bed and board is still the law. But in Tennessee, legal separation has completely replaced divorce a mensa et thoro. With legal separation, the spouses have lived separately and apart from each other for two years or longer when the judge enters a decree of legal separation. The marriage remains intact, though, just as with its predecessor the divorce from bed and board.

Codifying Tennessee’s Common Law of Alimony

1949: W. Prentice Cooper was Governor when alimony in futuro and alimony in solido were codified.

The 1949 decision in Rush v. Rush reaffirmed the Tennessee husband’s “common law liability” to support his wife. The court in Rush described such liability as follows:

“The husband owes the duty to his wife of rendering to her suitable support without reference to her financial condition. He ought not to be allowed to escape the performance of that duty by affording his wife cause for separation and placing her in a financial situation worse than it was before his misconduct brought about a legal separation.”

Rush v. Rush, 33 Tenn. App. 496, 232 S.W.2d 333 (Tenn.Ct.App. 1949), citing Williams v. Williams, 146 Tenn. 38, 236 S.W. 938 (Tenn. 1922).

With alimony firmly entrenched in our state’s common law, a few years after the end of WWII the Tennessee legislature codified the case law of spousal support and maintenance.

In 1949, Tennessee passed legislation enacting alimony in futuro and alimony in solido. Those early statutes (T.C.A. § 36-820 and § 36-821, respectively) were superseded by Tennessee’s current alimony law, T.C.A. § 36-5-121. These two forms of spousal support are typically awarded in Tennessee divorces today.

Alimony in Futuro TODAY

Also known as periodic alimony, alimony in futuro today may be ordered “on a long term basis or until death or remarriage of the recipient.” An award of this alimony provides financial support to the economically disadvantaged spouse in those circumstances where rehabilitation simply is not feasible, as when a spouse has reached retirement age. It is also intended to raise the recipient’s standard of living, in a balancing of equities between the spouses. T.C.A. § 36-5-121(f)(1).

Alimony in Solido TODAY

Today, Tennessee alimony in solido, also known as lump sum alimony, is another form of long-term spousal support. Most people are familiar with lump sum alimony in conjunction with the division of property, for which it is often awarded. But it may also be ordered to cover a party’s attorney fees.

For information about Tennessee alimony law today, read our discussion on Tennessee Alimony Law in Divorce | Answers to FAQs By a Memphis Lawyer.

Rehabilitating Spouses with Tennessee Alimony

Prior to 1993, a spouse’s request for rehabilitation assistance might have been considered by the court when awarding alimony in a particular case, because of the judge’s broad discretion in awarding alimony. However, such would not have been identified as rehabilitative alimony per se.

1993: Ned McWherter was Governor when rehabilitative alimony became law.

In 1993, rehabilitative alimony was added as a separate class of statutory spousal support. T.C.A. § 36-5-121(d). In a divorce, rehabilitative alimony may be awarded if the economically disadvantaged spouse would benefit from “additional education, job skills, or training.” The long-term objective of rehabilitative alimony is to help that spouse achieve financial independence or enjoy a standard of living reasonably comparable to what the couple experienced while married. Gonsewski v. Gonsewski.

Rehabilitative Alimony TODAY

Today, there is nothing extraordinary about awarding rehabilitative alimony to the economically disadvantaged spouse. Especially for younger men and women, those most likely to benefit from an investment in education or job training. For mature spouses, however, periodic alimony may be more appropriate depending upon the circumstances. In all instances, the judge conducts a case-by-case analysis using the Tennessee alimony factors. T.C.A. § 36-5-121(i).

Over a Decade of Tennessee Transitional Alimony

2003: Phil Bredesen was Governor when transitional alimony became law.

In 2003, Tennessee passed legislation allowing for a new class of spousal support:  transitional alimony. T.C.A. § 36-5-121(g)(1).

The legislature recognized a need to help the economically disadvantaged spouse move beyond the upset of divorce, a financial blow that some spouses never recovered from. For that purpose, transitional alimony is a form of short-term assistance quite unlike periodic alimony or lump sum alimony. Transitional alimony should not be awarded in conjunction with rehabilitative alimony. It is one or the other, not both.

Collecting and Modifying Tennessee Alimony

In 2005, the Tennessee legislature revisited alimony once again, confirming that alimony may be awarded in divorce, legal separation, or action for separate maintenance. T.C.A. § 36-5-121. The legislature also noted how the collection of alimony and the modification of alimony are supported by equally important public policies:

“[Alimony] award, if not paid, may be enforced by any appropriate process of the court having jurisdiction including levy or execution. Further, the order or decree shall remain in the court’s jurisdiction and control and, upon application of either party, the court may award an increase or decrease or other modification of the award based upon a showing of a substantial and material change of circumstances; provided, that the award is subject to modification by the court based on the type of alimony awarded, the terms of the court’s decree or the terms of the parties’ agreement.” T.C.A. § 36-5-121(a).

The provision above gives the court continuing jurisdiction which is its authority to revisit its initial alimony order. But only if the type of alimony can be modified by law. And if so, that a substantial and material change of circumstances has occurred since the date the initial alimony order was entered.

Alimony modification is an important issue for many spouses and former spouses, both obligors and obligees. See our discussion on Tennessee Alimony Modification Law | How to Modify Alimony in TN if you believe your alimony award should be increased or decreased because of a substantial and material change in circumstances. Either yours or the other party’s. Memphis TN divorce lawyer Miles Mason, Sr., has an informative YouTube video on alimony modification, too. Well worth a few minutes of your time to watch.

Where Is Tennessee Alimony Today?

2014: Tennessee Governor Bill E. Haslam.

Today, alimony determinations are factor-driven, independent of either party’s sex. Comparative fault is still a consideration, but the greater focus is on one spouse’s financial need and the other spouse’s ability (if not willingness) to pay. Women are still in the majority as recipients, but there is nothing in Tennessee law preventing or prohibiting the payment of alimony to a husband or former husband.

It’s been a long journey for alimony, but times have definitely changed in Tennessee.