How is alimony decided in Tennessee?
What determines alimony in Tennessee? What are grounds to receive alimony? What qualifies a woman for alimony? How long do you have to be married to get alimony in Tennessee? How does cheating affect divorce? How is alimony paid in Tennessee? How long does alimony last in Tennessee?
Alimony is decided in actions for divorce, legal separation, and separate maintenance. Importantly, if alimony isn’t awarded or agreed on at the time of divorce, then it cannot be obtained later.
What are grounds to receive alimony?
If one spouse needs support and the other spouse is able to pay it, then the court will consider awarding alimony. If the parties cannot agree, the court will analyze the legally mandated factors. The most important factors are length of marriage, relative earning capacities, earning history, education, and fault.
What qualifies a woman for alimony?
How is alimony decided in Tennessee?
While facts and circumstances may differ, the same grounds for alimony apply to both sexes. There is no legal basis requiring or favoring support based solely on sex. In fact, requiring only men pay alimony to women would be unconstitutional. Who qualifies for alimony in TN? It starts with need and ability to pay.
What factors affect alimony?
Basically, everything is considered with alimony. Here are some key factors summarized. See the alimony statute for the exact language.
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Income and Financial Resources
The court considers the parties’ relative earning capacities, obligations, needs, and financial resources. Income from pensions, profit-sharing or retirement plans, and all other sources are included in this consideration.
If a supported spouse is returning to the workforce, or one of the parties believes the other spouse to be underemployed, a divorcing spouse may hire a vocational expert witness to evaluate a spouse’s earning capacity. After that is done, a report may be issued, and testimony offered. On our YouTube channel, we have several videos with Dr. David Strauser explaining the ins and outs of vocational assessments.
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Supporting Spouse’s Ability to Pay
Determining how much alimony is provided each month begins with determining the supporting spouse’s ability to pay. What is his or her earning capacity? What are the reasonable monthly expenses for housing, food, clothing, debts, and general living expenses? What is the difference between earnings and expenses? This is the amount the supporting spouse is able to pay.
The ability to pay is then compared to the supported spouse’s reasonable need. How does the supported spouse’s reasonable need compare with the supporting spouse’s ability to pay? In conjunction with this analysis, most judges will consider the actual historical spending pattern and lifestyle of the parties.
Most Tennessee judges expect, or require, divorcing couples to be more frugal than otherwise. For example, if a couple routinely travel to expensive and exotic locations, that fact is likely to be considered for alimony post-divorce, but not while the divorce is pending. On the other hand, if the supporting spouse drives an expensive luxury car, that will be taken into account by the court when deciding what cost of a car is appropriate for the supported spouse. While courts expect divorcing spouses to be frugal, judges will seek to “even out” expenses between spouses, especially for longer marriages.
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Education and Training
Another factor is each spouse’s education and training. What ability and opportunity does each have to secure education and training? Will it be necessary for a party to secure further education and training to improve his or her earning capacity to a reasonable level?
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Years Married
How long do you have to be married to get alimony in Tennessee?
How long do you have to be married to get alimony in Tennessee?
Tennessee requires no particular minimum number of years married, but length is a key factor in determining alimony amount. Can you get alimony after 4 years of marriage? Maybe. Again, there is no set of rules here preventing alimony being awarded. For marriages shorter than seven years, alimony will more likely be awarded if one spouse is unemployed and needs assistance. The court’s goal will be to help ease the transition to single life. For longer marriages, courts will determine whether the supported spouse can be rehabilitated. In general, this means determining whether the spouse needing support can ever earn enough to return to the lifestyle the parties enjoyed together during the marriage.
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Custodian of a Minor Child
Will it be undesirable for a party to seek employment outside the home because he or she will be the primary custodian of their minor child? In a traditional marriage, the spouse who stays home with the children or who doesn’t work will likely be considered the dependent spouse.
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Standard of Living of the Parties
The standard of living that was established during the marriage is another factor. This can be a very tough factor to determine and may result in difficult rulings for some couples. For one couple, you could have a supporting spouse ordered to pay a great deal because the couple lived like kings, spending every dime that came in and more. For another couple, the supported spouse living in a frugal household may be awarded less than another similarly situated spouse just because they lived comparatively cheaply. To dive more deeply into this area of alimony, read about lifestyle analysis on MemphisDivorce.com.
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Mental and Physical Health
In awarding alimony of any type, the court considers the age, mental condition, and physical condition of each spouse. This includes any physical disability or incapacity due to a chronic, debilitating disease.
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Property Division
Another alimony factor is the parties’ property division and their separate assets. The larger the property division awarded, the less likely there will be a reasonable need for support. Is there passive income from investments? Social security? How old are the parties in relation to eligibility for pension and retirement benefits? If a supported spouse earns greater than expected and projected reasonable financial needs, a spouse may not be eligible for alimony. For example, if a spouse will receive greater than $3.5 million dollars in cash from a divorce settlement, that spouse may be able to earn enough passive income to not need alimony.
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Marital Fault
The court also considers the relative fault of the parties when determining alimony. Marital fault is wrong doing that contributed to the end of the marriage.
Were both at fault? Who is more to blame? Depending on the circumstances, and the judge, this could be a major factor, or a minor one. While Tennessee law says fault should not be used punitively, it can and does happen. Compare that to other situations. Whether or not a party is unfaithful, there may be only so much money to go around after children’s expenses such as college tuition, private school tuition, child support, car insurance, cell phones, etc. There may not be extra room for alimony and no ability for the supporting spouse to pay.
In today’s modern world, as a matter of general policy, many consider judges less likely to award as much alimony as they previously did. Some experienced family law attorneys think society (and some judges) has become numb to adultery claims because they see so much domestic violence and other bad acts. Adultery claims may seem almost ubiquitous and outdated.
Some divorcing spouses expect or want fault to be quantified, for example: a judge saying, “and just because you cheated on your spouse, you owe an additional $500 per month for 72 months.” It doesn’t work that way. A judge could think that way, but it is virtually impossible to correlate specific alimony amounts to particular bad acts. That being said, judges are human and cannot be expected to un-hear that one party suffered unjustifiably at the hands of another. This is one of the main areas in which an experienced family law attorney can help analyze situations and advise clients.
How does cheating affect divorce?
Adultery is grounds for divorce and a factor in awarding alimony. There are three defenses to adultery as grounds for divorce:
- Recrimination applies if both spouses are guilty of having relations outside the marriage.
- Condonation means forgiving the affair and resuming marital relations with the unfaithful spouse.
- Connivance is getting paid for the other spouse’s affair.
If any of these defenses is proven, then the court may not find grounds for divorce. Or the court may lessen the effects of fault on the alimony determination. Fault is not supposed to be punitive. Therefore, alimony shouldn’t be used to punish a party for his or her marital misconduct. Nor should more cash be piled on solely because of wrong doing. Still, the outcome depends on the judge, the severity of fault, and the connection between the wrong-doing and break-up. For more discussion, see How Much Can An Extramarital Affair Cost Under Tennessee Divorce Law?
Does a wife get alimony if she cheated?
A cheating spouse could still get alimony in Tennessee law. However, the court could reduce the monthly amount and shorten the term of payment because the relative fault of the parties remains a factor. Everything depends on the specific facts involved.
Tennessee divorce laws adultery and alimony
Most divorces are settled and don’t go to trial. Alimony is negotiated or mediated as to type, length, amount, and whether it’s modifiable. Mediation can be particularly helpful when there is fault on one or both sides.
Types of alimony in Tennessee
There are four basic alimony types in Tennessee:
- Rehabilitative Alimony
- Transitional Alimony
- In Futuro Alimony (also called Periodic Alimony) and
- Alimony in Solido (also called Lump Sum Alimony)
How is alimony paid in Tennessee?
Alimony can be paid before and after a divorce. While divorce is pending, the court may order temporary alimony (also called pendente lite support).
Rehabilitative alimony is awarded to a spouse who needs support to return to school, for example, or to earn a degree in order to increase his or her earning capacity so as to become financially independent.
Transitional alimony in Tennessee is awarded to help a spouse adjust to the economic consequences of divorce and become self-supporting. It’s ordered only when rehabilitative alimony is unnecessary.
Alimony in futuro in Tennessee (or periodic alimony) may enable the spouse receiving support to maintain a lifestyle close to that which was enjoyed during the marriage. This long-term alimony is most common in longer marriages. Before alimony in futuro is awarded, however, a court must determine that the supported spouse is incapable of being rehabilitated.
Alimony in solido (or lump sum alimony) is awarded as a fixed amount to make up for an imbalance in the property division.
What about permanent alimony in Tennessee?
Permanent alimony is not a strictly defined term in Tennessee law. What most lawyers mean when they say permanent alimony is alimony which continues until the death of the payor or payee. Most divorce settlements will include remarriage of the supported spouse as a trigger to terminate or modify alimony. For all permanent alimony, either party may petition the court for more or less alimony to be paid.
If a former spouse who is paying alimony wants to retire, he or she may petition the court seeking the termination or reduction of an alimony obligation. These cases can be very challenging, because essentially the judge must determine whether the retirement is objectively reasonable. If the court finds retirement is objectively reasonable, the court must consider all of the alimony factors just like at the time of divorce. If the spouse paying support can afford to pay alimony from assets and savings, the court will likely order the support obligation to continue.
In solido alimony (lump sum alimony) is permanent in that, if not fully paid, the obligation to pay it does not terminate at death.
Is Tennessee alimony paid for life?
In Tennessee, future alimony is paid for the life of the payor or the life of the payee, whichever is shorter. Periodic alimony, in general, is the same as alimony in futuro, but ends at a certain pre-set date. Keep in mind that alimony in futuro, periodic alimony, and rehabilitative alimony can be modified by the court upon application of either party. There is no preset minimum or maximum payment period or length of term unless otherwise stated by the court.
How long does alimony last in Tennessee?
How long does alimony last in Tennessee?
That always depends on the individual case. Sometimes, divorcing spouses have strong negotiating leverage and alimony payments can last a long time. The length of payment of alimony may be dependent on the amount paid and type of alimony negotiated. For example, under the same or similar circumstances, one spouse may pay $500 per month for 60 months compared to another spouse paying $1,000 per month for 30 months. Also, it is common in longer-term marriages, say over 15 years, for the more propertied spouse to “pre-pay” alimony by offering a larger percentage of the net marital estate property division at the time of the divorce. The alimony order or settlement should specify how much, for how long, and any special circumstances upon which alimony may be modified or terminated.
Some forms of alimony may be terminated.
Death of either party ends all forms of support except for lump sum alimony. In many cases, if stated so, the recipient’s remarriage could end alimony in futuro, rehabilitative, and transitional alimony.
An alimony recipient’s cohabitation with a third-party could result in modification or termination of alimony in futuro and transitional alimony. What happens if a ex-spouse receiving support lives with a third party? There becomes a rebuttable presumption that the party receiving support is either supporting or receiving support from the third party. From there, the spouse receiving support may prove that this is not the case and support is still needed and appropriate. Tennessee courts’ interpretation of this law can be confusing and down-right odd. So, if you are concerned about cohabitation, please discuss your situation in detail with your experienced family lawyer.
Yes, this is one of those areas of law in which there seems to be exceptions in every situation.
Is alimony taxable in Tennessee?
Tax consequences are another key factor when examining the equities between parties. Can you write off alimony from your taxes? Amounts paid as alimony or separate maintenance payments under a divorce or separation instrument executed after 2018 won’t be deductible by the payer. Such amounts also won’t be includible in the income of the recipient. The same is true of alimony paid under a divorce or separation instrument executed before 2019 and modified after 2018, if the modification expressly states that the alimony isn’t deductible to the payer or includible in the income of the recipient.
Expect important tax changes in the future. Tennessee does not have a state income tax which will be impacted by alimony. For a current discussion of tax aspects of divorce and alimony, we recommend you download and read the most current version of IRS Publication 504, Divorced or Separated Individuals from IRS.ORG. Also, talk to your tax professional.
In many divorces, alimony is the very last component negotiated. Be ready. Know your projected assets, debts, income, and expenses. Help your attorney help you. Never be afraid to ask tough questions. Expect direct answers.
Here are a few opinions, not facts, concerning alimony:
- Goal setting. One of the most important aspects of working with your family lawyer is setting realistic goals and creating an action plan for alimony. Your attorney must listen to you and tailor a strategy considering your values, needs, and priorities. There are no “one size fits all” solutions to negotiating alimony.
- Understand that no one can know exactly what a judge may rule on alimony – even the most experienced family lawyers. Experienced family lawyers can only give you an idea of a range of likely outcomes of a trial.
- There are a few tools family lawyers can use to help clients negotiate a more favorable alimony:
- Research Tennessee case law. What has happened in the past with divorcing spouses with similar lengths of marriage, incomes, education, and other circumstances. On our Tennessee Family Law Blog, we have alimony appellate cases sorted by length of marriage. Access to our blog is free for the public and attorneys alike.
- Hire a vocational expert. If a supported spouse is returning to the workforce, have a vocational expert witness perform a vocational assessment to determine income capacity. Vocational experts can also testify about reasonable education needs or retraining necessary to re-enter the workforce.
- Hire a forensic accountant to perform a lifestyle financial analysis, issue a report, and be available to testify regarding projecting one spouse’s ability to pay and the other’s reasonable need. Think of this as “running the numbers.” The calculations can be complex, considering asset and debt distribution, retirement assets, projected future earnings, social security, and reasonable expenses of the parties adjusted for the age of the parties and cost of the children’s education. Usually, the analysis will project a certain number of years into the future. Study the numbers. Ask for help to understand what the numbers are saying.
- Cash now is better than cash over time. Consult a financial advisor to discuss relative advantages to receiving more money now (property division) rather than alimony paid greater than 10 years from now. This should be analyzed in conjunction with retirement financial planning.
- Hope is not a strategy. Know your strategy. Alimony negotiations are part science and part art. Your experienced family lawyer will likely have a particular process and style they have developed over time. Understand, too, that many aspects of negotiating alimony necessarily depend on responding to the opposing party’s tactics. Ask your attorney for his or her opinion on “What’s a reasonable goal?” “What’s our plan?” If you don’t understand the answers, ask more questions.
- Know your numbers. Almost all experienced family lawyers will strongly suggest avoiding making emotional decisions about alimony. Make projected, realistic, and informed budgets. All divorcing spouses should take responsibility for understanding and communicating with their lawyer if a particular proposed alimony settlement type, amount, or length of time makes him or her uncomfortable. Know what you need to live. Don’t guess. Never just throw your hands up and leave it “to fate.” If you are struggling with this, consider hiring a financial advisor to help you. Lawyers are not financial advisors. Helping clients with such things is exactly what financial advisors do for a living.
- Best deal possible. Family lawyers are experienced negotiators. That is one of the most important reasons to hire one. Once you are comfortable with the type of alimony and amount negotiated, and your attorney tells you the parties are negotiating within the range of likely outcomes at trial, strongly consider working next on getting the best deal possible. Your experienced family lawyer will have advice for you on how best to achieve your financial goals, and possibly a bit more.
