Alimony & Divorce in Your 70s
When a spouse is over 70 years old, Tennessee courts may be inclined to grant alimony in solido, which is a one-time payment designed to provide for a spouse’s ongoing needs, as opposed to in futuro alimony.
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 70s
Alimony & Divorce in Your 70s
When a marriage ends in divorce, there are almost always tough financial issues that need to be sorted out when the court considers property division and alimony. This is certainly true in cases in which one or both spouses are in their 70s. There is often a substantial amount of property, and this can include assets such as a marital home or pensions. The parties may already be receiving passive income from investments, pensions, or Social Security. Such cases require an attorney with a solid background in finance and accounting. Seeking advice from a financial advisor is also advised.
Because of the financial complexities, when a spouse is over 70 years old, Tennessee courts are sometimes inclined to grant alimony “in solido,” which is a one-time payment designed to provide for a spouse’s ongoing needs, as opposed to in futuro alimony. Need and ability to pay are still critical factors, but the need is satisfied with a lump sum rather than periodic payments.
Case #1 Disabled Husband vs. Receptionist Wife
Wife Gets $100K Alimony In Solido after 10 Year Marriage
A good example of a court awarding alimony in solido is the case of Mr. and Mrs. Kilo who divorced in Bradley County, Tennessee, after a decade of marriage.
At the time of their marriage, the wife was working as a receptionist and legal assistant but was laid off about six months into the marriage. She looked for a new job but gave up the search after about two years. The husband was disabled and not employed during the marriage. In 2017, the wife filed for divorce, and the case went to trial.
The wife was 67 years old at the time of trial and was in good health. She was receiving $286 per month from an annuity, which would continue for 17 years. She had also recently received an inheritance of $15,000. Her main source of income was a railroad spousal annuity of $922, which would be reduced to $645 after the divorce. Her total assets at the time of trial were about $40,000, consisting mostly of savings from the annuity and inheritance.
After leaving the marital residence, the wife moved into an apartment and paid $984 per month rent.
The husband was 72 years old and had been disabled since before the marriage. Between his disability and railroad pension, his income was about $3,900 per month.
The trial court divided the parties’ property and awarded the wife an additional $100,000 alimony in solido. The wife was also awarded her attorney’s fees. The husband appealed to the Tennessee Court of Appeals.
The husband first argued that the lower court had erred in awarding the alimony. The appeals court noted that trial courts have broad discretion when it comes to alimony awards. An appellate court can reverse only if the trial court applied the wrong legal standard or made a decision that was clearly unreasonable. It then reviewed the relevant statutory factors.
The husband argued that the lower court had misapplied one of the most important factors, namely, the wife’s need and his ability to pay. He argued that paying the $100,000 jeopardized his ability to meet his future needs. But the appeals court disagreed.
It first noted that the husband had over $900,000 in assets, whereas the wife had only $42,000 in assets. The wife had a monthly deficit of $1,200, but the husband had an excess of over $1,200. In making this ruling, the appeals court stressed that cases are generally won or lost at trial. Specifically, it made clear that it would not “second guess” the trial court or substitute its own judgment for that of the trial judge.
The appeals court also agreed with the lower court that the wife was entitled to her attorney’s fees.
Case #2 Air Force Retiree vs. Restaurant Manager
Wife Gets House After 56 Years Married
Alimony in solido was also awarded in the case of Mr. and Mrs. Lima, who divorced after 56 years of marriage, when the husband was 78 and the wife was 77.
After dividing the rest of their property, the trial court awarded the husband’s interest in the marital residence to the wife as alimony in solido.
The parties married in 1952. The husband worked with the Air Force. In 1968, the husband retired from that position, and he and the wife moved to Miami where the husband worked with AT & T. He retired from that position in 1995, and the wife decided to move to Tennessee to be closer to their daughter. All three were on a deed purchased for a home that the couple lived in the basement of. The daughter lived in the upstairs portion.
In March of 1996, the husband stated he was leaving with a car and motor home. The wife later learned the husband was staying with a woman, but the wife received between $600 and $750 per month from the husband from the time he left in 1996 through January of 2008. In March of 2008, the wife filed for divorce alleging desertion and adultery. The trial court assigned the husband his share in the home, but then awarded that share of the residence as alimony in solido. The husband appealed this decision.
In terms of alimony in solido, the appeals court ruled the award of the funds from the home was proper as a type of long-term support, since its purpose was to provide financial support to the wife. The amount awarded was within the trial court’s discretion.
The husband argued on appeal that the wife failed to show a need for alimony. In her statement, though, her income was reported as $1,753 per month comprised of $1,097 from social security and $666 in rental income. Her expenses were $2,712.96 per month. Therefore, the wife’s expenses exceed her income by $959.96.
As a result of its findings, the appeals court stated that the awarding of alimony in solido was not an error of the lower court, considering the marriage had lasted 56 years, of which the husband spent 44 years with the wife and 12 years with his paramour, and due to the age of the wife of 77 and the husband of 78. It stated the wife held various jobs over her lifetime including working as a general administrator for a restaurant, but her highest salary was $35,000. Her physical condition had deteriorated. It noted that the trial court’s decision to provide alimony was appropriate, and it affirmed the lower court’s decision. In making this ruling, the appeals court stressed the wife’s relatively low earning capacity and physical condition, and also pointed out that the “uncontested cause of the divorce” was the husband’s adultery.
Case #3 Retired Husband Keeps Asbestos Settlement
Wife Gets $250/Month
But even when the spouses are older, alimony in solido is not always appropriate, as shown by the case of Mr. and Mrs. Mike, a case decided by the Tennessee Court of Appeals in 2010. After 25 years of marriage, which included at least a decade of separation, the husband, 86, filed for divorce from his wife, 75. Both spouses claimed that the other was guilty of inappropriate marital conduct.
At the time of the marriage, the husband was retired from Union Carbide, as well as the Navy National Guard. The wife worked various jobs throughout the marriage, as both a nurse and a security guard.
In 2008, the husband received a settlement of $150,000 in a class-action lawsuit regarding his exposure to asbestos. The checks were made payable to both the husband and wife. He filed for divorce shortly thereafter.
Shortly after receiving the asbestos settlement, the husband filed a complaint for divorce on the grounds of inappropriate marital conduct. The wife responded by filing a counter-claim for divorce.
The court ultimately held that the husband was entitled to the asbestos settlement. It divided their other property and awarded the wife $250 per month in alimony. She then appealed to the Tennessee Court of Appeals.
She argued on appeal that the trial court should have awarded a lump sum of alimony, alimony in solido. She argued that the trial court failed to consider her need when awarding alimony. She also argued that, at the very least, the alimony should not terminate on the husband’s death.
But the appeals court looked at the lower court’s record and concluded that the lower court had properly considered the relevant statutory factors, including her need. One factor that both courts deemed important was the de facto separation for the last ten years of the marriage. That, along with her work history, age, and physical condition led the lower court to conclude that a further award of alimony in solido was not necessary.
The wife argued that $250 per month was not enough and pointed to the husband’s cash assets of $88,000. But again, the appeals court held that the lower court had applied the correct factors, and pointed out that:
Alimony is not “a guarantee that the recipient spouse will forever be able to enjoy a lifestyle equal to that of the obligor spouse.”
For these reasons, the Court of Appeals affirmed the lower court’s ruling, fixing the alimony at $250 per month.
Case #4 Older Photographer to Pay Alimony $2K / Month
Until Wife’s Retirement Available at 67
Another case in which the wife was awarded traditional alimony was the Crockett County, Tennessee case of Mr. and Mrs. November. At the time of their divorce, after 21 years of marriage, the husband was 76, and the wife was 57.
It was the husband’s third marriage and the wife’s second, and no children were born of the marriage. For the majority of the marriage, the wife was employed. She had degrees in music. The husband had three years of college. He was employed by the Air Force prior to the marriage and then operated a photography business.
The husband filed for divorce on the grounds of irreconcilable differences and inappropriate marital conduct, and the wife alleged the same grounds.
The wife left the marital home in 2012, and the husband gave her $3,000 per month for expenses. She eventually moved back.
In 2014, the husband’s photography business had business income of about $55,000, and he received retirement and disability income of about $7,000 per month. However, he questioned how long he would be able to keep working as a photographer.
The wife testified that she could no longer work due to various ailments including fibromyalgia and chronic fatigue. She did care for her grandchildren during the day, but said that she slept when they did, and that her son provided everything she needed to care for them. She received disability income of about $1,586 per month, but wouldn’t have access to her retirement income until the age of 67.5. She claimed expenses of about $4,300 per month.
The trial court divided their property and granted the divorce based upon the husband’s conduct. The lower court ordered the husband to pay her attorney fees of about $11,000 and the remainder of the mortgage, about $16,000. But the lower court denied the wife’s request for alimony in futuro, and the wife appealed to the Tennessee Court of Appeals.
On appeal, the wife argued that alimony should have been granted because of her need and the husband’s ability to pay. The appeals court noted that a court must consider a number of factors in making an alimony decision. In this case, the lower court found most of those factors to be equally weighted.
The appeals court noted that the two most relevant factors are the disadvantaged spouse’s need and the other spouse’s ability to pay. The disadvantaged spouse’s need is the primary of these.
The appeals court was sympathetic to the wife’s arguments. It noted that even though the husband was older, he had a higher earning capacity due to his retirement and disability income, a source that the wife couldn’t tap until she was 67. Therefore, upon its review of all of the evidence, it concluded that $2000 per month would be appropriate until such time as she could access her own retirement income. And due to the wife’s demonstrated need, the appeals court also awarded her attorney’s fees for the appeal.
Alimony & Divorcing in Your 70s
Case #5 No Alimony for Wife Claiming Poor Health
Five Year Marriage Considered Short Term
After a short marriage, the wife was denied alimony in the case of Mr. and Mrs. Oscar. They married in 2008, a third marriage for both of them, and the husband filed for divorce four years later, when he was 70, and the wife was 58. When trial ended, they had had a five-year marriage.
The trial court granted the divorce in 2013 and divided the marital assets. The wife had made a request for alimony and reimbursement of medical expenses, but that request was denied.
The wife appealed to the Tennessee Court of Appeals. First, she argued that she was entitled to alimony, since she had medical conditions that might become problematic in the future.
In addition, she alleged that she had paid medical bills in excess of $110,000 during the marriage from her separate property, and that this should be reimbursed from marital funds.
The appeals court first noted that the marriage had been of a short duration, only four years. In such a case, the court’s main duty is, as much as possible, to place the parties back in the financial positions they occupied prior to the marriage. But there are other statutory factors to consider, and the appeals court next turned to those factors.
In particular, the wife pointed to her health. She had been diagnosed with breast cancer, but it had been in remission for three years.
[The wife] testified that she also suffered from headaches, as well as head and hand tremors that allegedly left her bedridden. However, Dr. Johnson’s testimony did not corroborate [wife’s] testimony in this regard. Thus, the trial court determined that [wife’s] allegations of head and hand tremors were not supported by the medical proof. With regard to her claim of a fibromyalgia diagnosis, Dr. Johnson demurred, calling it a “wastebasket category” diagnosis. Dr. Johnson testified that on two separate occasions, [wife’s] liver became tender and swollen, but the last occurrence was in March 2012. Dr. Johnson opined that [his patient] seems to have completely recovered from this condition. Overall, Dr. Johnson stated that “generally her health is not that bad.” Thus he concluded that [the wife’s] condition was “no better and no worse” than most of the patients he sees, and that her condition was “consistent with a woman her age.”
After carefully weighing all of the evidence, the appeals court held that the trial judge’s findings were supported by the evidence. Therefore, it affirmed the denial of alimony. Again, the appeals court stressed that it does not second guess trial judges unless the evidence shows that there was an abuse of discretion.
The court next turned to the question of whether the medical expenses should be reimbursed, but denied her request since she failed to produce evidence at trial such as bank statements, cancelled checks, bills, or any other documentation. In fact, the balance of her investment account had actually increased during the marriage.
Divorce when you or your spouse is over 70 often involves complex financial issues to determine property division and alimony, and the award of alimony is often more complex than in cases involving shorter marriages. As the Jackson case shows, a spouse must prove need for support and ability to pay. That often requires expert witness testimony.
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:
