Alimony Reform as National Trend Coming to Tennessee?
- At January 29, 2016
- By Miles Mason
- In Alimony
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Talk these days among lawyers, judges, and lawmakers often circles around national trends in alimony reform. And the place alimony currently holds in Tennessee divorce law. But what is alimony reform? What are these national trends? What are the general arguments for and against alimony reform?
Is alimony reform as a national trend coming to Tennessee?
Is Tennessee a leader in the national trend toward alimony reform? Not particularly. Tennessee certainly has a rich alimony case history, but it is not at the forefront of any push for broad alimony reform. Nonetheless, national trends and the alimony reform movement are something to keep an eye on.
To fully appreciate the arguments for and against alimony reform and for information on key alimony concepts, read about Alimony Law in Tennessee Divorce | Answers to FAQs.
What Is Alimony Reform About?
As a national trend, alimony reform is a movement to revamp alimony laws across the country, state by state. Reform is generally accomplished in two ways: incrementally or by complete revision. Incremental reform is advanced one bill at a time. Complete revision means the total renovation of a state’s alimony law.
Reform takes place through bills introduced in the legislative process. Some pass, many do not. Some bills will make it to the governor’s desk only to be vetoed. A bill that fails to become law can be revived in the next legislative session, or the next.
Alimony, Demographics, and Changed Societal Norms
Alimony reform is premised on the need for a long-overdue adjustment to changed demographics and new societal norms regarding the roles of American women and men. The impetus behind the alimony reform movement, at least to some, seems to stem from special interest groups involved in or inspired by the State of Massachusetts 2011 statutory overhaul.
Since that time, Massachusetts alimony law has been under scrutiny, as has the reform movements’ push for complete revision of other states’ alimony laws. Many people, perhaps most, might agree that certain changes to existing alimony laws are worthy of careful consideration while other proposed changes are too far reaching.
Proposed legislative reform considers, purportedly, the changing face of the nation. (Speedy change may also be motivating alimony reform efforts.) Reformers would consider the rate of cohabitation among unmarried people, the popularity of individually funded retirement plans, the changing duration of alimony, the limitation or elimination of alimony modification, among other things.
Should We Reform Tennessee Alimony Law?
Although citing every argument for and against alimony reform is beyond the scope of this discussion, we do delve into a few topics of interest. Be mindful that there are always proponents of legislative change. Because issues are debated does not mean the national alimony reform movement will result in immediate, dramatic changes to Tennessee alimony law. However, we do anticipate these issues to surface as national trends move forward. If you have concerns now, then consult an experienced alimony lawyer about your specific situation.
Proponents of alimony reform offer many persuasive arguments, as do those who staunchly support the status quo. Tennessee and alimony have been staunch courtroom allies for generations. Very little about alimony law has been left undecided by Tennessee’s appellate courts. The larger questions remain. Does alimony continue to serve an important purpose in divorce? Have lawmakers kept pace with public perceptions of what alimony should be used for? Should alimony law reflect changed notions of marriage and family? Is now the time for significant alimony reform?
Over the years there have been changes to Tennessee alimony law, most recently being statutory amendments to the purposes, definitions, and four types of alimony: Alimony in Solido (lump sum), Alimony in Futuro (periodic), Transitional Alimony, and Rehabilitative Alimony. You may want to take a moment to read Alimony Law in Tennessee for a discussion about T.C.A. § 36-5-121 and court decree for support of spouse.
We want to share some national trends in alimony reform as part of a larger discussion among family law attorneys, judges, politicians, advocates, and the general citizenry. However, this overview is not intended to be an endorsement of any particular position.
Pros and Cons to Alimony Reform on the National Stage
Most people have an opinion about alimony. Many believe alimony is outdated, old-fashioned, a relic of the past (until they need it for themselves or a loved one). Some think alimony unfairly discriminates against men or prevents women from achieving their full potential. Others think alimony is too harsh for the person who has to pay it or inadequate to help the person who needs it. Many assert alimony should be in the smallest amount for the shortest duration, without exception. What follows are some of the pros and cons we have come across in researching national trends in alimony law reform.
Should zero alimony be the default? Should the spouse seeking alimony have to fight tooth-and-nail to get it? For the economically disadvantaged spouse, does it matter that litigating alimony might be fiercely expensive? Would extensive barriers to alimony result in alimony avoidance? Is that fair?
AUTOMATIC TERMINATION OR MODIFICATION OF ALIMONY
National Trend: State legislation that terminates or modifies the alimony order automatically upon occurrence of a specified event.
These alimony reforms are targeted at:
- Cohabitation
- Retirement
- Child Support Termination
- Retroactive Orders
Cohabitation and Modification of Alimony
Cohabitation is a popular cause for reform of alimony modification law. Statistically, cohabitation as a lifestyle choice between romantically involved adults has been increasing for decades. However, alimony reformers would offer a change to alimony law by redefining when alimony should terminate because of the recipient’s cohabitation.
Cohabitation as a lifestyle choice
What happens to alimony if the recipient moves in with another adult? Typically, alimony is either automatically modified or terminated with cohabitation by agreement between parties. Therefore, a judge’s finding of cohabitation is required before modification or termination can occur. Redefining “cohabitation” and including same sex relationships are developing as national trends, too.
Consider this example. A woman receiving periodic alimony has been living with a romantic partner for several months. They share living expenses, household chores, home repairs and maintenance, and are out-and-about socially as a couple. In some jurisdictions, such cohabitation could result in automatic modification or termination of alimony.
In Tennessee, if the award is for periodic alimony or transitional alimony and there is a finding of cohabitation, then living with someone creates a rebuttable presumption that less money is needed to support the former spouse. There is more. The judge has discretion to modify alimony upon showing of substantial and material change occurring since the original alimony order was entered. Is the recipient’s need for support substantially less because another person is contributing to living expenses? Then modification is possible. Alimony modification for reasons of cohabitation could mean suspended, reduced, or terminated support, depending upon the circumstances. (See T.C.A. § 36- 5-121(f)(2) for exact language.)
Historically, judges have always had broad discretion in determining alimony. One reform to Tennessee law, in light of the national trend, might be to eliminate judicial discretion in alimony modification. How? By inserting in the statute a default position of automatic reduction or automatic termination of alimony upon cohabitation or other specified event.
Retirement and Modification of Alimony
The national trend seems to be for legislation to tie alimony modification and termination to the obligor’s retirement age or actual retirement date (when reasonable and done in good faith). Some legislative reforms create a rebuttable presumption that alimony should end when the obligor makes it to his or her “retirement age.”
In particular, proponents of alimony reform argue that obligor’s reaching ordinary retirement age for purposes of Social Security eligibility, pension, severance pay, and so on, is reason for alimony to end automatically. That is, automatic alimony modification at time of retirement age or, alternatively, when obligor actually retires.
At this time, neither retirement scenario is codified in Tennessee law. However, such reform bills could reach the assembly floor for debate in the foreseeable future.
Termination of Child Support and Modification of Alimony
Another area of reform, one that would impact many people, is legislation to automatically modify alimony following termination of child support. This would be an upward modification of alimony automatically following the end of child support obligations.
Proposed legislation characterizes the end of child support as a substantial change in circumstances sufficient for alimony modification. Without child support to pay, an obligor has more resources available from which to pay alimony. In other words, even though the obligor’s income has not increased and the recipient’s economic need has not changed, more funds have become available. The alimony modification requirement of substantial change is set by statute to include the end of child support. Presumably, reformers would not require that the recipient establish a substantial change of circumstances that indicated increased financial need.
Should alimony law consider termination of child support as a reason for an automatic increase? If the divorce decree did not prohibit future modification and did not specify the end of child support as an alimony modifying event, then some reformers argue that terminated child support is reason to increase alimony automatically by statute. Actions have consequences. Should this be one of them?
Retroactive Orders and Modification of Alimony
In some jurisdictions, not Tennessee, a court may order modification of alimony retroactive to the date of the event that gave rise to the request. Say, for example, that a petition to modify alimony was filed on June 1, praying for relief in the form of alimony retroactive to March 1. Modification effective March 1 is retroactive.
Some argue that modified alimony orders should never be retroactive, regardless of financial need or extenuating circumstances. That the earliest date a modified order should take effect is the day the petition was filed which also corresponds to the other party’s notice of the action.
What if parties agreed to retroactive modification of alimony as a settlement term included in the divorce decree? Enforcement of such an agreement is yet another potential area of alimony reform.
Some legislative initiatives seek to improve predictability of alimony awards by limiting modification to only those circumstances set forth in the parties’ agreement. The court enforces its initial order and those terms set forth in the parties’ settlement agreement. If the agreement says “alimony terminates if recipient cohabitates for 30 days or longer,” then the judge must enforce that condition without further inquiry into fairness, financial need, or materially changed circumstances.
Other state laws now allow modification of alimony despite a judicial order that expressly prohibits modification. Reformers argue that modification is necessary to promote justice and fairness following substantially changed circumstances. One has to wonder how this can improve predictability of alimony awards when the face of the order says “no modification,” but the facts may later result in “yes modification.”
CURTAILING DURATION OF ALIMONY
National Trend: State legislation makes the end of permanent alimony more ascertainable with specific termination dates.
Many proponents of alimony reform cite the need for specific termination dates, for limiting how long alimony payments may be ordered, and for a trend toward eliminating permanent alimony altogether.
The goal of these reforms, at least in part, is to improve predictability while effectively taking the “permanent” out of permanent alimony. Some refer to this as “open duration alimony” or “transitional support” so there is no mistaking it for permanent alimony or general support.
Ordinarily, a permanent alimony order requires payments until one spouse or the other dies or remarries. Permanent alimony may be modified with substantially changed circumstances, unless it cannot be modified as previously discussed.
In Tennessee, alimony in futuro is permanent alimony. An important factor for the court’s consideration is the lifestyle the spouses enjoyed during the marriage. This type of alimony is most effective in balancing the equities where one spouse is economically disadvantaged. Therefore, the judge has a great deal of discretion in determining the need for, amount of, and duration of permanent alimony awards.
Another national trend has been the shift away from permanent alimony to a form of rehabilitative alimony or transitional alimony. This is to help the spouse over the hump of divorce, but only to provide financial help until he or she gets a better job, moves into a smaller place, or finishes a college degree, for example, all of which lead to self-reliance.
Courts may exercise continuing jurisdiction over rehabilitative alimony awards, too, so those orders can be modified later. These key reforms may effectively limit the recipient’s options, shorten duration of alimony, and create predictability of purpose. They may also prevent the recipient from recovering financially from the divorce by so restricting alimony that only a small percentage truly become self-sufficient. (Could the trend away from permanent alimony shift the burden of support onto the government in the form of welfare?)
What is a marriage of long duration? One of the ways to make it more difficult for a spouse to establish the need for alimony is to re-define short-term and long-term marriage. Instead of a short-term marriage being from “1 to 5 years,” for example, the new statute defines it as lasting from “1 to 10 years.”
What reform methods are offered to make permanent alimony more predictable (and less permanent)? One method ties the payment of alimony to the duration of the marriage. Legislation may limit alimony years to 50% of the total years married (married 5 years, alimony limited to a maximum of 2.5 years, for instance).
Other legislation restricts alimony payments to no more than a stated period, regardless of how long the spouses were married (for example, “in no case shall alimony exceed 10 years”).
LIMITING JUDICIAL DISCRETION OVER EQUITIES IN ALIMONY
National Trend: State legislation limits judicial discretion and balancing of equities between spouses in awarding alimony.
Alimony serves an important function in equalizing an imbalance in economic power resulting from the marriage. Forbes columnist Jeff Landers has written about national trends in alimony reform. In 2013, he noted that “reform” did not necessarily represent real progress for the economically disadvantaged spouse in divorce, usually the woman. His analysis still strikes true in that:
“Many women have given up educational and employment opportunities [investing their time and labor in the family] … many women have also helped their husbands (financially or otherwise) achieve law, medical or other professional degrees or training.
After several decades, he is at the peak of his earning potential (thanks in part to her) and she is relatively unemployable (except for some low paying clerical or minimum wage job).”
Landers points out that, although assets are split 50/50 in divorce, the husband’s earning power will allow him to “replace some or all of those assets over time while she, because of her lack of earning power, will be liquidating assets from day one and will ultimately go broke. The purpose of alimony is to somewhat equalize this disparity.”
Reformers would remove the element of judicial discretion and the balancing of equities in alimony determinations. They argue, in part, that judges have too much discretion in setting alimony. Many reforms seek to make the exercise of judicial discretion more difficult and time consuming. Because judges might abuse discretion, so goes the argument, statutes should dictate limits and require judges provide detailed written findings for why a deviation from alimony guidelines was warranted in the case. Given burgeoning case loads, human nature, and the desire to stay on top of one’s judicial calendar, the result is likely to be blanket submission to whatever the guidelines calculate.
Additionally, Tennessee law lists the alimony factors the court must apply when determining what role alimony should play in the parties’ divorce. Is there a financial need for alimony? How long should alimony last? What type of alimony fits the need? How much should the obligor be ordered to pay?
As Landers reminds his readers, if a spouse does not need the money, then the judge is quite capable of minimizing the amount and duration of the award or of denying the request for alimony entirely.
ALIMONY AWARDS ARE INCONSISTENT AND UNPREDICTABLE
National Trend: States attempt to make alimony awards and modifications more predictable through legislation.
Some argue that alimony is too unpredictable an issue in divorce. Unpredictability exacerbates feelings of distrust and ill will, makes negotiations difficult and settlement far more challenging than it should be. Furthermore, the results from one case to the next can differ substantially, even where the factual circumstances and legal issues are quite similar. Many believe that alimony reform can improve predictability.
Should there be alimony guidelines? As with most jurisdictions, Tennessee has yet to develop alimony guidelines. The key to the uniformity and predictability of Tennessee Child Support Guidelines is the formula. Alimony reformers argue that similar guidelines could make alimony calculations predictable with orders consistent across all cases.
Can a formula be used to calculate spousal support? Certainly. Alimony formulas for amount and duration are in use by many states already as a baseline calculation for temporary alimony.
Should this be extended to all alimony cases and not just be limited to setting pendente lite alimony? In 2012, Massachusetts became the first state to adopt an alimony formula for all cases, not just for temporary alimony.
Alimony guidelines, with a resulting formula, could consider income from all sources, duration of marriage, education, job training, and a number of other relevant factors. Judges would still have discretion to deviate from the guidelines, increasing or decreasing payments from the formula results. That is, of course, with sufficient cause supported by the evidence.
Movements to reform alimony should be of interest to most people, not just those who practice as divorce attorneys. Today, there are no known popular efforts to change alimony law in Tennessee. But as the national trends continue to march onward, we do expect that effort to appear in the near future. Keep your powder dry.
