Alimony & Divorce in Your 60s
When the divorcing parties are in their sixties, alimony and support determinations are intertwined with issues involving pensions, whether and how soon a spouse will retire, and even whether health issues will prevent one spouse from earning income.
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 60s
Alimony & Divorce in Your 60s
In many divorce cases, an underlying assumption in the alimony calculation is that both parties will be employed to some extent after the marriage ends. But when the divorcing spouses are in their sixties, that assumption is often no longer applicable. Tennessee Courts decide alimony based upon a number of factors, and two of the most important factors are one spouse’s need and the other spouse’s ability to pay. The courts also look to whether one spouse is economically disadvantaged. When the parties are in their sixties, those determinations are intertwined with issues involving pensions, whether and how soon a spouse will retire, and even whether health issues will prevent one spouse from earning income.
Every case depends on its own facts, which is why it’s important to consult with an experienced lawyer who will ask the right questions. And when financial assets, such as pensions, are at issue, it’s important to have an experienced financial advisor as well.
Case #1 Retired Husband to Pay RN Wife $1K / Month
Couple lived “certain high-level lifestyle”
While every case is different, the case of Mr. and Mrs. Foxtrot is a good illustration of how Tennessee courts look at the need of one spouse versus the other spouse’s ability to pay.
In December 2009, the wife, 66, filed for divorce from the husband, 65, after 42 years of marriage, on the grounds of inappropriate marital conduct. The final divorce decree was given in June 2011. The trial court divided the marital estate and awarded the wife periodic alimony in the amount of $1,000 per month. The husband appealed the classification and division of the estate as well as the award of alimony. The appeals court affirmed the lower court’s decision.
The wife had received a bachelor’s degree and was a registered nurse. The husband had received an undergraduate degree in nuclear science and a master’s degree in mechanical engineering and worked as a nuclear engineer. They had two adult children. During the trial, the wife lived at one of the parties’ properties in Tennessee, which was completely paid for, and the husband lived in another city. The wife was in good health, other than a hysterectomy in 2009 and cervical cancer in 1997.
Most of the wife’s work during the marriage was part-time, and she worked around the children’s schedule since she was responsible for raising them. At times, she held two jobs. At the time of the trial, the wife’s gross monthly income was $2,407.69, and her total stated expenses were $3,350.55. She had $31,000 in an IRA and $900 in a retirement account. The wife also testified that she had $285 in her bank account and could not afford to pay her attorney’s fees. She also testified that the husband had been abusive and there was an Order of Protection against him.
The primary issue was a dispute over the husband’s income. The wife testified that the husband earned about $100,000 per year before he retired. The husband held that his income was $1,633 per month. The question arose from additional income the husband earned from a side business, on which he did not pay taxes, for the restoration and resale of old cars.
The trial court considered many of the factors listed in the Tennessee code to determine if and how much alimony should be paid to the wife. These included the spouses’ ages, earning potential, their separate assets, the division of the marital assets, contributions to the marriage, and fault. The lower court held that the husband had been an unsupportive marriage partner, unfaithful and short-tempered, and held him responsible for the marriage’s termination. The court awarded the wife $1,000 in alimony in futuro to be paid monthly and alimony in a lump sum, or in solido, for her attorney fees, in the amount of $5,500. The husband appealed both rulings.
The appeals court upheld the decision of the lower court and affirmed both the alimony in futuro and in solido. The appeals court reiterated that courts are given wide discretion on matters of alimony and may consider the factors listed in the code, as the lower court did. In this case, the couple was married for 42 years and enjoyed a nice lifestyle.
In particular, the Court noted:
Wife and Husband lived a certain high-level lifestyle. Though both worked, it is clear from the record that Husband earned more than Wife. Wife stayed at home and raised the couple’s children. Wife traveled to visit Husband who often was away for months at a time. With respect to fault, the Trial Court found that Husband “has not been a supportive and active participant in the household at many times . . .,” is “short-tempered and unfaithful,” and “[failed] to recognize any actions of his which were not in support of the marriage.”
A court orders periodic alimony when one partner is at an economic disadvantage, rehabilitation is unlikely, and the payments are required to enable the weaker spouse to achieve the pre-divorce lifestyle she previously enjoyed or the same post-divorce lifestyle as the paying spouse.
The appeals court conceded that alimony was not intended as a “a guarantee that the recipient spouse will forever be able to enjoy a lifestyle equal to that of the obligor spouse.” But the court zeroed in on the fact that the husband had a rather substantial income buying, selling, and restoring vehicles for profit, despite collecting disability benefits. The husband’s testimony that he no longer worked with cars was rejected since the lower court found his testimony contradictory. After reviewing the evidence, the appeals court concluded that the wife was the economically disadvantaged spouse and was entitled to the award of alimony.
Case #2 Engineer to Pay Stay at Home Wife $1.6K / Mo.
Trial Court Awarded More Than Available Income After Expenses
Limited employment prospects are often cited by Tennessee courts in making the determination that a spouse is economically disadvantaged, as shown in the case of Mr. and Mrs. Golf, who divorced after 43 years of marriage. In 2014, the wife, 63, filed for divorce against the husband, 64.
After dividing the marital property, the court turned to the issue of alimony. The wife hadn’t worked outside the home for 18 years. Because of the husband’s work, they had moved frequently, which the wife claimed prevented her from receiving education or training. At the time of divorce, she had no income. She paid her adult son $800 per month to maintain the nine-acre property where the marital home was located.
The husband earned an income of over $6,000 per month as an engineer, plus occasional bonuses and per diem. He testified that he hoped to retire in a year when he reached 65 and that he would receive approximately $2,500 per month social security if he retired then.
After hearing the evidence, the trial court set the husband’s alimony obligation at $2,000 per month. The husband then appealed a number of issues, including the alimony award, to the Tennessee Court of Appeals.
In his appeal of the alimony issue, the husband pointed to the trial court’s finding that he had only $1,644 per month available after expenses, and that the trial court erred in setting alimony higher than this amount. He also argued that the trial court had not properly considered pensions which had been awarded to the wife.
After grappling with the property division issues in the case, the appeals court turned to the question of alimony. It noted that trial courts have broad discretion in setting alimony, and that the award should not be disturbed unless the evidence preponderated against it. It then looked at the statutory factors and how the lower court had applied them.
It first looked at the fact that the adult son had been living with the mother and noted that this might be evidence that the need for alimony is lessened. However, the appeals court noted that the son had lived there prior to separation, and after considering all the circumstances, it concluded that this evidence did not preponderate against the lower court’s award.
The appeals court also found that, under the circumstances, the evidence did not preponderate against the lower court’s making the alimony award permanent. Even though she might be able to get a minimum wage job, the appeals court found that her employment prospects were limited.
The appeals court did look more favorably at the husband’s argument that the alimony award exceeded his available income of $1,644 per month. After reviewing the evidence, it found that an award in excess of this amount was an abuse of the lower court’s discretion. Therefore, it lowered the alimony obligation from $2,000 to $1,644. Ability to pay is one of the critical factors, and when the trial court exceeded this amount, it amounted to an abuse of discretion.
Case #3 Letter Carrier Owes $1.9K/Month to Substitute Teacher
Wife Had Health Issues
Another case in which a Tennessee court found a need for alimony was the case of Mr. and Mrs. Hotel. The wife filed for divorce in Tennessee in 2013 after a 29-year marriage. At the time of the divorce, the wife was 63 years old and in poor physical condition. The trial court found that the husband was in good physical condition and had a higher earning capacity. It also found that he had an ability to pay, and the wife had a need. Therefore, the trial court awarded alimony in futuro in the amount of $1,900 per month. The husband then appealed to the Tennessee Court of Appeals.
At trial, the husband had testified that the wife was voluntarily underemployed. However, she testified that she was working as much as she could, given her physical condition and other circumstances.
The appeals court first noted that appellate courts should generally not second guess alimony decisions of trial courts, since the lower court has broad discretion to consider all the relevant factors. It also noted that the trial court’s findings enjoy a presumption of correctness and should not be set aside unless the evidence preponderates against them.
The appeals court then examined the evidence. The husband was a letter carrier, and earned about $61,000 per year. He was eligible to retire at age 63, but stated that he had no plans to do so at that time.
The wife, on the other hand, had a shoulder replacement which resulted in permanent nerve damage. She had also had replacement surgeries for her hips and for the other shoulder, as well as other health conditions with her having seven different prescriptions. She worked as a substitute teacher.
The husband testified that she had frequently turned down substitute teaching positions, but she testified that she could only work a few days per week when she was feeling well and that she had only declined jobs because her physical condition couldn’t handle them. Her gross income from teaching was about $300 per month. She showed expenses of $2,909 per month.
The appeals court concluded that the evidence did not preponderate against the lower court’s findings and affirmed that the wife was not voluntarily underemployed.
Case #4 Retired Orthodontist Shares 60% of Rental Income
Accountant Wife to Continue Accounting for Properties
In most Tennessee cases, an award of alimony is in the form of cash, a set dollar amount per month. But Tennessee courts can show a certain amount of flexibility in making this decision, as shown by the case of Mr. and Mrs. India, in which the wife was awarded an income-producing property as a substitute for transitional alimony.
The wife, 64, and husband, 68, were married in 1974, and divorced after 41 years. The husband was an orthodontist and had earlier suffered a service-related disability in the navy. The wife had degrees in psychology and social work, but her employment during the marriage consisted mostly of providing accounting services for the orthodontic practice. Because of his disabilities, the husband retired from his orthodontic practice in 2000, and had since focused on real estate investments.
The trial court divided the parties’ property, which consisted mostly of rental properties. They were split in such a way that the wife received about 60% of the rent, with the husband receiving about 40%. The court also noted that this difference constituted an award of transitional alimony, and made no further alimony award, other than allowing her to recover her attorney’s fees.
The husband appealed to the Tennessee Court of Appeals. He raised a number of issues, including the propriety of the award of transitional alimony. After addressing those issues, the appeals court turned to the alimony award.
The husband argued that the award was unfair, partly because the trial court had treated the marital residence, which he received, as if it were an income-producing property. However, the appeals court called this argument disingenuous, since the husband admitted receiving “cost sharing” payments from people residing at that address when he was in Florida or Hawaii. The appeals court noted that it was solely up to the husband whether he wanted to rent the property. The court also noted that the wife was to provide accounting services regarding the properties until they were sold, further making her higher portion of the rent fair.
The Court ruled:
[T]ransitional alimony, which is a form of short term alimony, is to aid the economically disadvantaged spouse who needs financial assistance in adjusting to the economic consequences of the divorce. Because Wife needs temporary financial assistance in adjusting to the economic consequences of the divorce, we find no abuse of discretion with the trial court’s decision to award Wife transitional alimony in the amount and for the duration stated.
But even though this case shows that flexibility is sometimes warranted, a 2016 case shows that alimony awards must follow a certain format.
Alimony & Divorcing in Your 60s
Case #5 Salesman vs. Nurse Anesthetist
Improper to Award Percentage of Bonuses
Mr. and Mrs. Juliet were married for 33 years and had four adult children at the time of their 2014 divorce. At the time of the divorce, the husband was 65 and earned a monthly salary of $3700 as a salesman, along with commissions. Between 2010 and 2013, his total earnings averaged about $159,000 per year.
The wife was 62 years old and had a graduate degree in anesthesiology. She had worked as a nurse anesthetist until about 2002. Until about 1990, she had earned a greater income than the husband. Since 1992, she had experienced various health problems. For example, she underwent surgery after being diagnosed with cervical scoliosis.
The wife took the position that she left work in 2002 because of these health problems. The husband, on the other hand, argued that the wife was asked to leave her job until she “got her narcotics cleared up” and that she abused medications and alcohol. The husband admitted to an affair.
After hearing the evidence, the trial court granted the divorce on the grounds of irreconcilable differences. It divided the property, and then considered the issue of alimony. The lower court found the wife to be the disadvantaged spouse and held that the husband had an ability to pay. The court awarded $1,000 per month as transitional alimony, plus half of the husband’s quarterly bonuses. It also awarded the wife $300,000 alimony in solido to compensate for differences in value of the property awarded.
Both the husband and wife appealed. The husband argued that the support had been miscalculated. The wife argued that she should have also been awarded alimony in futuro. After addressing some preliminary issues, the Tennessee Court of Appeals turned to the merits of their arguments. The husband’s primary argument was that the award of a percentage of the bonus was improper, and instead, the award should have been for a specific dollar amount. The appeals court agreed and noted that the statute called for “some definite amount or amounts.” It cited a 1987 case in which a court had interpreted this provision to prohibit awards of percentages. It pointed out that it was proper to consider the asset in making the award, but the award had to be a fixed dollar amount. For this reason, the appeals court vacated the award of alimony and remanded the case. The court also agreed with the husband that the award had been properly characterized, and there was no need to designate the award as being alimony in futuro, as requested by the wife. After addressing a number of other issues, the court remanded the case for re-computation of the alimony award.
A divorce case where the parties are in their 60’s can have many complex issues, and the end result will depend on the exact circumstances, particularly with respect to length of marriage, fault, earning history and capacity, and health.
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:
