Alimony & Divorce in Your 50s
When divorcing spouses are over 50 years old, usually theirs has been a long-term marriage. This also usually means that a major lifestyle change is in the cards for either the husband, the wife, or both. Is it worth divorcing at 50? How do you survive a divorce in your 50s?
When meeting with a divorce client for the first time, the question arises, “Do you have any idea about alimony?” Divorcing spouses always hate the honest answer, “It depends.” How long was the marriage? Did the parties live an affluent lifestyle? What amount of liquid assets will the supported spouse receive? Social security? Retirement balances? Health of the spouses? Earning history and capacity? Education? Length of time absent from the workforce? The list of variables seems endless. Even experienced divorce lawyers cannot predict alimony with precision.
Alimony is often the very last divorce term negotiated. Alimony is necessarily dependent on property division, spouses’ lifestyles, and of course, need and ability to pay. The final amount is negotiated, not calculated. As has been said many times before, “You don’t get what you deserve, you get what you negotiate.”
After divorce trials, if a party in unsatisfied with a judge’s decision, there is an appeal. On appeal, the court of appeals reviews the facts and determines if there should be an adjustment, reversal, or remand. In Tennessee, these appeals are heard by a panel of three judges. The court’s decisions are written and published, described as “appellate opinions” or “cases.” As these decisions are released to the public, they impact family lawyers’ and judges’ understanding of the process and the possible results if a divorce goes to trial. These decisions affect all divorce negotiations.
Five appellate opinions of divorcing couples are discussed, listing their unique facts and circumstances, the trial judge’s rulings, and the appeals courts’ rulings. They represent only a fraction of the cases. View them as starting points for gaining perspective. All of these opinions are public record, available on the Internet, and summarized in the Tennessee Family Law Blog’s alimony cases sorted by length of marriage, not by age of the parties. Names of the parties have been changed.
Alimony & Divorcing in Your 50s
Alimony & Divorce in Your 50s. Is it worth divorcing at 50? How do you survive a divorce in your 50s?
When Tennessee spouses are over 50 years old, usually theirs has been a long-term marriage. This also usually means that a major lifestyle change is in the cards for either the husband, the wife, or both. In deciding alimony, the Tennessee courts must take a realistic look at the relative position of the parties in making this important decision.
Case #1 Divorce in County Schools
Alimony Cut from $800 to $400 per month
The most critical factors that Tennessee courts use in deciding alimony are the paying spouse’s ability to pay and the need shown by the spouse who will receive alimony. A good example of this is the case of Mr. and Mrs. Alpha, who were both in their mid-50s when their 28-year marriage came to an end in 2006. The wife had a need for alimony, but when the case went up on appeal, the Court of Appeals took a close look at her need and concluded that it was not as acute as the lower court had initially ruled.
There are no hard and fast rules with respect to spousal support decisions.
The Court said:
The Tennessee General Assembly has stated its intent that “a spouse, who is economically disadvantaged relative to the other spouse, be rehabilitated, whenever possible, by the granting of an order for payment of rehabilitative alimony.” In those cases where rehabilitation is not feasible, “the court may grant an order for payment of support and maintenance on a long-term basis or until death or remarriage of the recipient ….”
The purpose of an in futuro award is to “mitigate the harsh realities of divorce” and “to provide financial support to a spouse who cannot be rehabilitated.” Alimony in futuro serves the purpose of providing support to the spouse who is unable to achieve self-sufficiency.
The wife had a master’s degree and was a tenured teacher in the county school system where she held a position of Administrative Offices of Federal Programs. Her monthly income was $4,323. The husband also had a master’s degree and was a tenured teacher in the same school system. When the case went to trial, he held the title of Director of Schools, a position he had held for 19 years. His monthly income was $6,416.
In 2002, the husband had an adulterous relationship. He hired the paramour in a position within the school district and allowed her to work in the same office with the wife until she convinced him to transfer the paramour to another office. The wife was in good health whereas the husband previously had cancer, which was then in remission.
The wife filed a monthly income and expenses statement, which indicated her net income was $3,020.29, and her monthly expenses were $3,905.92. Since she had a shortfall, she requested the award of alimony. The trial court awarded her $800 per month, but the case went up on appeal.
Because of her advanced degree, both courts agreed that she had no need for rehabilitative alimony. But even after the husband was assigned to take over one of her debts, she still had a shortfall between her income and expenses of about $500. The husband, on the other hand, had a surplus of over $1200.
After considering the husband’s ability to pay and the wife’s need, the Court of Appeals ultimately concluded that an appropriate award would be $400 per month, rather than the $800 awarded by the lower court.
The Court stated:
In order to achieve a better balance between the parties’ post-divorce standard of living, we modify the award to reflect an award of alimony in futuro in the amount of $400 per month. In modifying the award, we note that “[t]he parties’ incomes and assets will not always be sufficient for them to achieve the same standard of living after divorce that they enjoyed during the marriage.”
Case #2 Husband Earns $175K per year
Wife gets $4K per month
A case in which the wife had a greater need involved the marriage of Mr. and Mrs. Bravo, a 2008 case in which the court found both spouses guilty of inappropriate conduct after 30 years of marriage. 55 percent of the marital property went to the wife and 45 percent to the husband. The wife appealed after being awarded alimony of $4,000 per month.
The parties married in 1976. At the time of the trial, the husband was 56 years old, and the wife was 55 years old. They had two adult children. The wife had not worked outside of the home since the time of the first child’s birth. In 2003, the wife was diagnosed with chronic leukemia, which was in remission. The parties agreed that the marriage had not been good for a long time. They separated in June of 2006 when the wife found the husband was having an extramarital affair.
In July of 2007, they agreed to an order under which the husband would pay temporary support in the amount of $9,000 per month. In March of 2007, the husband petitioned the court to sell the marital home, stating they were approaching a financial crisis. The wife had no desire to remain there, as the home was 6,400 square feet and valued at $900,000.
The trial court heard the case in August of 2007 and ordered the husband to pay alimony of $4,000 per month. The wife appealed, arguing that $8,000 per month would be more appropriate.
The husband’s gross salary was initially pegged at $250,000 per year. He earned $125,000 per year from one company and a bonus of $30,000 per year. In addition, he earned $100,000 per year from a second company as a partner, according to the wife. Based upon these figures, the wife argued that he had an ability to pay $8000 per month. As further evidence of his ability, she pointed to the fact that he had been able to pay $9000 per month under the temporary order.
The husband argued that he had worked for one of those companies in 2005 after the failure of the other, and that adding the two salaries together was not appropriate. He also pointed out that he had been able to pay the $9000 temporary support while the matter was being litigated out of the parties’ joint expenses and he was living rent-free in the employer’s basement.
But upon reviewing the evidence, the appeals court set the husband’s earning capacity at $175,000 per year and the wife’s earning capacity at $25,000 to $40,000. Based upon this need and this ability to pay, the appeals court affirmed the award of $4000 per month. Evidence matters. The Court stated:
[The wife], in essence, that despite the property division awarding her 55 percent of the parties’ property, including liquid assets in the amount of approximately $600,000, and the award of $4,000 per month in alimony, it is unfair to expect her to pay for an undetermined amount of uninsured medical expenses in light of the fact that she suffers from chronic Leukemia. [The wife] fails to cite to any law, however, to support her proposition that she may be awarded an indefinite sum to pay for an indefinite and indiscernible amount of medical expenses. She further fails to cite to any evidence in the record which would demonstrate that she is insurable in light of her medical condition, or that would indicate the likely cost of such insurance.
Nevertheless, the appeals court ordered the husband to pay her COBRA health insurance premiums. The court pointed out that the type and amount of alimony is generally within the trial court’s discretion. It depends on the facts and circumstances of the case, but the recipient’s need and the obligor’s ability to pay were the primary considerations.
Need and ability to pay are the most important factors, but in many cases, these can be impacted by the property distribution. If a spouse receives a large share of the marital property, her need for ongoing alimony might be reduced. But in some cases, even though the property division looks generous at first glance, the spouse might still have a need.
Case #3 Retired TVA Pensioner Loses Half of Pension But Pays No Alimony
Mr. and Mrs. Charlie were married in 1972 and had two sons, both of whom were adults when they divorced 38 years later. The husband worked for the Tennessee Valley Authority for 30 years prior to his 2004 retirement and received a monthly pension of almost $4,500. He also worked as a consultant and construction manager until being laid off in 2011. The wife worked as an accountant until their youngest son was born. She was later hospitalized for post-partum depression and received disability benefits of $951 per month.
In 2011, the wife filed for divorce in Montgomery County, Tennessee, alleging inappropriate marital conduct and irreconcilable differences. In 2012, the court granted her a divorce on the grounds of inappropriate marital conduct. The marital property was valued at over $712,000, and the trial court divided this equally. In lieu of alimony, the court awarded the wife half of the husband’s TVA retirement pension. The wife appealed the denial of alimony to the Tennessee Court of Appeals.
The Court of Appeals began its analysis by examining the factors employed in making alimony decisions. It noted that this had been a 38-year marriage, and the wife was 59 years old. The wife had a college degree but had not worked outside of the home for years because of her disability. She did, however, earn some income from selling Mary Kay products and doing taxes for friends. It also noted that she received more of the property division than did the husband, in addition to half of his pension.
The wife argued that the husband was voluntarily underemployed, but the court found little evidence to support this claim.
Upon examining all the evidence, the Court of Appeals found no reason to say that the trial court had abused its discretion. It was quick to point out that the wife received more assets than the husband in the property division, and this factor seemed to weigh heavily in its decision. Therefore, it affirmed the trial court’s ruling and upheld the denial of alimony.
Alimony & Divorce in Your 50s, Is it worth divorcing at 50? How do you survive a divorce in your 50s?
Case #4 Auburn Vets Divorce But Wife Fails to Prove Need for Alimony
Another case in which the terms of the property distribution largely negated the need for alimony involved the marriage of Mr. and Mrs. Delta. The contentious marriage in this Meigs County, Tennessee case ended in divorce in 2019. The husband’s mother described the marriage as always having been a battle and said that the spouses “argued and fussed the whole time they’ve been married.” Both were 52 at the time of trial, and both had veterinary degrees from Auburn University.
They built a house in Tennessee in 2000, and the wife worked full time until their first child was born the next year. She testified that she still wanted to work full time then, but the husband had objected. After the children were born, she worked between two and four days per week.
At the time of the divorce, the husband had a 45% interest in his veterinary practice, and his expert witness valued his interest at $464,000, which was less than the value he had assigned as part of the practice’s operating agreement, about $1.1 million. The expert attributed this difference to discounts for lack of marketability (10%) and lack of control (20%). The expert testified that he applied the market approach to the overall business value.
The wife’s valuation expert was a doctor of veterinary medicine who worked for Simmons and Associates, a firm which provided transactional service in connection with the sale of veterinary practices. He set the husband’s interest as having a value of $1.2 million.
Among the accusations in the case was an intimate relationship which the husband had with an employee, who was 20 years old at the time. She had given the husband a cell phone to use to communicate with her, and he kept it in a drawer at work, or under the seat of his truck. She testified that she was often present at the parties’ home, since the husband wanted her to become familiar with the children before he left his wife. He told her that he had received some court papers, and that he didn’t intend to name her when he answered. He told her that if he were subpoenaed, he would say that he forgot to include her.
After a trial, the court set the value of the husband’s interest in the practice at $850,000, and also valued the other properties. The court awarded each party half of the marital property and set custody as 50/50, with the husband being named primary residential parent. Despite her request, the wife was denied alimony, and she appealed to the Tennessee Court of Appeals.
That court first affirmed the valuation and distribution of the parties’ property, including the veterinary practice.
On the question of alimony, the wife pointed out her earning capacity, while being about $500 per day, was still less than her husband’s. She also pointed out that she had sacrificed her career in order to be a mother and homemaker, to the point that her husband’s earning capacity was several times hers.
The trial court concluded that the wife had not established that she was the economically disadvantaged spouse. After reviewing the evidence, especially the fact that she had been awarded half the value of husband’s interest in his practice, the appeals court agreed that the trial court had not abused its discretion. Therefore, it affirmed the denial of alimony.
This is a good illustration of the critical importance of financial data being properly presented in the trial court. The husband argued on appeal that the wife had not really presented evidence of her need for alimony, and the Court of Appeals seems to have based its ruling partly on this basis. The appeals court pointed out that alimony is generally within the discretion of the trial court, and the wife had failed to carry her burden of proof to show that she was economically disadvantaged. Visit the alimony section of MemphisDivorce.com for a detailed discussion of Lifestyle Analysis.
Case #5 Rug Mogul Owes $8K / Month Alimony to Wife
Wife’s Earning Capacity Held Not Enough
In contrast, the divorce of Mr. and Mrs. Echo after 30 years of marriage was one in which a seemingly generous property award failed to negate the wife’s need for alimony.
Both spouses in this Davidson County case grew up in Iran. The husband came to the United States in 1978 at the age of 17. He went into business with his father selling rugs. The wife was 19 when she moved to the U.S. about five years later. Her parents owned a rug store in Denver where she occasionally worked. The couple met in 1988 and had a religious marriage ceremony in Nashville. They were legally married at the courthouse the following year.
The husband and his father expanded their business and constructed a manufacturing plant in Smyrna, Tennessee, where they manufactured non-slip rug pads. The wife was never paid a salary, but occasionally worked for the business. After she gave birth to a daughter, she stopped working at the store and remained a stay-at-home parent. They had another child, a son, in 1997.
The husband handled all the couple’s financial matters, and they eventually built a home valued at over $2 million. The wife eventually suspected the husband of adultery and filed for divorce in 2016.
Soon after the case was filed, the Davidson County, Tennessee trial court ruled on temporary support and directed the husband to provide the wife a credit card with a limit of $15,000, but with the wife to charge no more than $7000 per month except in an emergency.
A four-day trial was held in 2019, and many issues were decided, filling a 45-page order. Among the issues decided was alimony. The husband’s income was pegged at about $400,000 per year. The wife had not been looking for a job, but the court set her earning capacity at between $17,000 and $19,000 per year. The wife had claimed many expenses, but the lower court trimmed these down. Ultimately, the lower court concluded that the wife was entitled to $8,308 per month periodic alimony. It also awarded the wife $40,000 in attorney fees and almost $30,000 in expert witness fees.
After some post-trial motions, the husband appealed to the Tennessee Court of Appeals. Among other things, he argued that the alimony failed to properly consider the parties’ separate property. In particular, the husband argued that the trial court had failed to take into account the wife’s interest in her mother’s home in Iran. The wife had a one-third interest, and the husband’s attorney stated that there were reports that the property might have been worth $7 million. The wife’s opinion was that it was worth about $850,000. The husband noted that he sent an appraiser to the home, but they refused to let the appraiser in.
The courts downplayed this asset, first because there was no appraisal. In addition, the trial court noted that it would be impossible for the wife to transfer any assets out of Iran, even if the property were sold. The trial court had also based its calculations upon the assumption that the husband would inherit his parents’ estate upon their death. While there was no will, there was testimony by the husband that tended to support this assumption.
After considering the evidence on these points, the appeals court concluded that the trial court had not committed reversible error. Therefore, it let these holdings stand.
On appeal, the husband had argued that the amount of alimony was excessive due to the amount of marital property that the wife had received. But the appeals court held that this property had little effect on the wife’s need, since she would need to use much of these assets to purchase a residence. The appeals court also agreed with the lower court that there was a great disparity in the spouses’ earning capacities. For these reasons, it let the alimony award stand.
This shows the importance of expert testimony in alimony cases. The wife offered the expert testimony of certified rehabilitation counselor Linda Jones as to the wife’s future employment prospects. This included vocational testing and evaluation of her earning capacity, including consideration she spoke English as a second language.
In awarding alimony, both the trial court and the appeals court relied heavily on the complex financial evidence in the case, as well as the testimony of the rehabilitation expert.
On our Tennessee Family Law Blog and YouTube channel, we feature several videos with Dr. David Strauser explaining vocational expert witness testimony and earning capacity for alimony in divorce.
See original opinions for exact language. Legal citations omitted.
For a younger supporting spouse, a court may believe that the spouse can pay alimony and work a bit more to make up the difference. For younger supported spouses, there is time for education, retraining, and improving earning capacity.
For older couples, the court will hear intense arguments about health, reasonable retirement age, assets which generate income, and retirement account balances. Some spouses who have been out of the workforce may realistically have no earning capacity, relying on passive investment income, social security, retirement, and spousal support. With less opportunity to “make up ground” by saving for retirement, the stakes can be higher.
Evidence must be carefully planned. All the alimony factors are considered. Expert witness testimony from doctors and health care experts address feasibility of returning to work and projected health care needs. Vocational experts testify about earning capacity. The court may require financial experts to testify about the lifestyle enjoyed by the parties during the marriage, financial need, and ability to pay. Center stage for alimony negotiations include what is a reasonable expectation of income from retirement assets, social security benefits, and health insurance costs not covered by insurance.
To learn more about alimony, visit MemphisDivorce.com. Start by watching our video “How is alimony decided in Tennessee?” In our Tennessee Family Law Blog there are more divorce and alimony cases sorted by length of marriage. Learn about all of Tennessee’s alimony statutory factors. That will be your evidence roadmap. Learn about vocational evaluations and lifestyle analysis.
Relying upon the professional judgment of his or her attorney, one party will propose a settlement. With respect to alimony, that includes offering a particular type of alimony, length of time to be paid, amount of payment, and other important legal provisions. Negotiations are rarely a linear process. There could be significant time in between offers. Mediation could be attempted. Some divorces settle “on the court house steps” the morning of trial. Some settle quickly and painlessly.
A few final words of encouragement.
“It may seem difficult at first, but all things are difficult at first.”
Miyamoto Musashi, The Book of Five Rings.
Learn about alimony. Ask questions. On one hand, you are paying your attorney to help “with the heavy lifting,” of which negotiating alimony is certainly heavy. On the other hand, always remember, your lawyer makes recommendations, but you make decisions. While your family lawyer may have a favorite negotiating style, never be afraid to ask “Why are we doing this and not that?” When you sign your divorce settlement, you want to be comfortable knowing your legal options and financial decisions make the most sense for you.
References, resources, and more:
- How is alimony decided in Tennessee?
- Alimony Law in Tennessee Divorce | Answers to FAQs
- From our blog, alimony cases sorted by length of marriage:
