Negotiating Alimony in Tennessee, Part One
- At June 29, 2016
- By Miles Mason
- In Alimony
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Mason’s opinions on alimony negotiating, goal-setting and budgeting. No one knows what the judge may rule on alimony, family lawyer tools for negotiation. Cash now is better than cash over time. Hope is not a strategy. Know your numbers. Best deal possible. In the theater of Tennessee divorce, tips about negotiating alimony seldom garner the attention they should. Especially when viewed against a backdrop of rubble that was once a couple’s happy marriage. With divorce inevitable, making deals may not be a priority. But it should be.
Realistically, negotiating alimony is a key element of the Tennessee divorce process. The parties are expected to give their best efforts in attempting to work out as many agreements as they can between themselves. In fact, the court could order them back to the negotiating table to try harder. Why? Because how well the parties negotiate alimony can profoundly affect the outcome.
An interesting place to start your research is our Tennessee Family Law Blog. In our blog, we sort alimony cases by length of marriage. (These are appeals of divorce trials and written opinions from the Tennessee Court of Appeals.) We spotlight and organize opinions for alimony cases with marriages lasting 0-9 years, 10-14 years, 15-19 years, 20-24 years, and 25 years and longer. While no two divorce cases are exactly alike, reading case law summaries for marriages roughly the length of your own with parties’ earning capacities as similar to yours as possible can provide a helpful start.
Divorce is not a game!
Negotiating alimony.
At times, spouses may feel as though negotiating alimony is a competitive sport. Results impact lives for years to come. The court’s decree is the final word on spousal support, setting forth obligations and terms for each alimony type ordered. Be prepared to seriously negotiate alimony because once a settlement is reached there is very little, if any, wiggle room.
Certain types of alimony can be modified after the divorce, that’s true. But every request for alimony modification requires filing a petition, attending a court hearing, and proving a substantial and material change of circumstances since the divorce.
Alimony Settlement Is Possible in Every Tennessee Divorce
Alimony is an important legal issue in every Tennessee divorce. And in every divorce, parties negotiate terms. Whether or not they actually settle, well, that’s up to them. The court can order spouses to negotiate or mediate, but cannot force them to agree.
“Negotiate alimony? But we can’t stand the sight of each other!”
Believe it or not, the divorce process provides ample opportunity for spouses to agree on a plan for spousal support and maintenance. Every type should be carefully considered before settlement negotiations begin:
- Alimony in futuro (also known as periodic alimony) is long-term support and maintenance for an economically disadvantaged spouse.
- Alimony in solido is support in a lump sum, often linked to an equitable division of marital property. Also called lump sum alimony, it cannot be modified or terminated after the divorce.
- Rehabilitative alimony is short-term support to assist the economically disadvantaged spouse in attaining financial independence through education, retraining, recertification, and the like.
- When rehabilitation is unnecessary, receiving short-term support as transitional alimony can help the spouse move on and adjust to life after divorce.
The same individuals who are unable to keep a civil tongue with each other shall communicate and shall negotiate the one’s economic need and the other’s ability to pay. Counterintuitive? Maybe. Impossible? Definitely not. With their attorneys’ assistance (and substantial trial experience really matters in this), spouses settle on alimony each and every day. By entering negotiations with the right attitude, a successful outcome becomes much more attainable.
What Can Be Negotiated?
The mantra “everything’s negotiable” applies to alimony, too. So long as it’s lawful, almost everything about alimony could be negotiated.
Negotiating alimony is not a game. No voluntary settlement? Let the judge decide!
Generally, negotiation preparation begins by understanding what the issues are, what the spouses’ rights are, and what Tennessee law requires in divorce. Don’t be limited to one issue. Grasp the big picture. Alimony is often dependent upon the division of marital property. Which is tied to child custody and parenting time. Which is tied to mandatory child support, and so on.
Negotiating alimony in futuro, for instance, might mean agreeing to give up some parenting time days during the kids’ summer vacation. Negotiating more out of the marital home could mean agreeing to less rehabilitative alimony for real estate school. Negotiating an amount the other parent will contribute annually to the children’s college trust may mean agreeing to take on the less desirable rental property. Everything’s negotiable, unless it isn’t.
No Voluntary Alimony Settlement? Let the Judge Decide!
As with any legal issue raised in divorce, if the spouses do not settle alimony voluntarily, then the judge must decide for them. Letting the judge decide alimony should be the last resort, not the first option. The court decides all outstanding issues at trial and enter orders. In letting the judge decide alimony, the parties invite a stranger, an outsider, into a family matter that is intensely personal – support and maintenance of a former spouse.
Step back a moment. Once the court process is initiated with a divorce complaint and alimony is sought, the parties must comply with Tennessee law. One requirement is to attempt settlement on the issue of alimony. Settlement requires negotiation, mediation, or both. To stop a pending divorce, the spouses must mutually request the court dismiss their case.
Couples do reconcile. Spouses are always encouraged to suspend divorce proceedings or seek dismissal in order to invest time in marriage counseling with a mental health professional, pastor, or other trusted advisor. This is why Tennessee has a waiting period of 60 or 90 days before any divorce is final. It’s a little time to let passions cool. So spouses don’t end the marriage in knee-jerk reaction to a mistake or marital indiscretion.
If spouses do not reconcile. If a new complaint for divorce is filed. If a pending divorce is back on the court’s trial calendar, then there it is again. The need to negotiate alimony is once again front-and-center. Be ready to deal with it.
Method of Negotiating Tennessee Alimony
The actual method used to negotiate alimony in Tennessee law is simple. Of course, somebody has to go first.
Representing the client’s position on alimony, one lawyer will be the first to draft and exchange a proposed marital dissolution agreement (MDA) with the other party and lawyer. MDAs cover a lot of territory. In addition to alimony, the proposed MDA will include provisions for the division of property. When the spouses have minor children, there will also be a proposed parenting plan to exchange.
Next, the other spouse can respond to the first draft. That response typically includes additional terms and may request mediation. Mediation is mandatory if the parties have children. Most Tennessee courts will require mediation upon the request of either party even if there are no children.
Spouses may seek discovery during negotiations or ask for more information. Regarding the supporting spouse’s professional medical practice, for instance, discovery may be requested to validate an assertion of that asset’s value. The responding spouse will have the right to complete discovery and perform a reasonable investigation into valuation of the medical doctor’s assets before being compelled to attend mediation.
Understand that in Tennessee, mediation is generally required in Tennessee before the divorce is set for trial. If alimony negotiations go well, then trial may not be necessary.
Always Negotiate from a Position of Strength
No one can negotiate from a position of strength without doing a little advance research. Look to hire a divorce lawyer who is an experienced negotiator.
Note the issues to be determined in your divorce. Consider your position on each issue. List your strengths and weaknesses regarding each issue, then do the same for your spouse. Communicate with your lawyer. Plan you strategy.
Focus on the matter of establishing alimony. Study Tennessee’s alimony factors and the economically disadvantaged spouse’s need versus the supporting spouse’s ability to pay. Read about alimony and learn. The more you read and learn at the beginning of your Tennessee divorce, the more pitfalls you’re likely to avoid. And that includes avoiding pitfalls over alimony in futuro or alimony in solido, for instance.
We continue this important discussion with Negotiating Alimony in Tennessee, Part Two.
To learn more on alimony in Tennessee:
