Cole Law Group Blog
Alimony – A Primary Issue in Divorce
For better or worse, nearly half of marriages in the United States end in divorce. Although the exact statistics on divorce fluctuate slightly from year to year and state to state, the residents of Tennessee are no strangers to breaking the bonds of matrimony. Throughout Tennessee, it is widely accepted and understood that issues pertaining to child custody and property division must be decided as part of any divorce. However, another extremely important issue in divorce – the issue of alimony (sometimes referred to as “spousal maintenance” or “spousal support”) – is often less certain or overlooked by parties to a divorce until it is too late, particularly if either or both of the parties have never gone through divorce before or if the divorce is unexpected.
In a broad legal sense, there are five (5) primary issues pertaining to any divorce: (1) grounds for divorce; (2) child custody; (3) child support; (4) equitable distribution of marital property; and (5) alimony. While none of these issues can be considered in isolation, the issue of alimony often predominates throughout divorce. The issue of alimony is the last major issue decided by the trial judge in a Tennessee divorce. Even if the facts of a case strongly indicate that the Court is likely to award one party alimony at the conclusion of the proceeding, vigorous litigation can ensue regarding what form the alimony should take, as well as its amount, duration, and other conditions.
Types of Tennessee Alimony
Under Tennessee law, there are four (4) main types of alimony: (1) alimony in futuro; (2) alimony in solido; (3) rehabilitative alimony; and (4) transitional alimony. See Tenn. Code Ann. § 36-5-121(d)(1).
The first type, alimony in futuro, “[i]s intended to provide support on a long-term basis until the death or remarriage of the recipient.” Tenn. Code Ann. § 36-5-121(f)(1). Alimony in futuro “can be awarded where ‘the court finds that there is relative economic disadvantage and that rehabilitation is not feasible.’” Gonsewski v. Gonsewski, 350 S.W.3d 99, 107 (Tenn. 2011) (citing Tenn. Code Ann. § 36-5-121(f)(1)). This form of alimony often turns out to be all but permanent, not usually terminating until the death of either of the parties, the remarriage of the party receiving the alimony, or the subsequent cohabitation of the party receiving the alimony with a third person after the divorce. From the perspective of the party paying a spousal support obligation, alimony in futuro is often the worst outcome; from the perspective of the party receiving it, it is often the best outcome.
The second type, alimony in solido (also a “form of long-term support”), is “set on the date of the divorce decree and is either paid in a lump sum payment of cash or property, or paid in installments for a definite term.” Id. at 108 (citing Tenn. Code Ann. § 36-5-121(h)(1)). This form of alimony is often referred to as “lump sum” alimony because it is set at a definite amount (determined at the time the parties are divorced) and is often paid by one party to the other in a single lump-sum payment. Tennessee courts frequently use alimony in solido as a mechanism to make one party pay for the other party’s attorney’s fees.
The third type, rehabilitative alimony, differs from the first two types. Rehabilitative alimony is not a form of long-term support. Rather, it “serves the purpose of assisting the disadvantaged spouse in obtaining additional education, job skills, or training, as a way of becoming more self-sufficient following the divorce.” Id. (citations omitted). The General Assembly has expressed a preference for rehabilitative alimony over the other types “whenever possible.” Tenn. Code Ann. § 36-5-121(d)(2).
The fourth type, transitional alimony, may be awarded by a court when it “finds that rehabilitation is not required but that the economically disadvantaged spouse needs financial assistance in adjusting to the economic consequences of the divorce.” Gonsewski, 350 S.W.3d at 109 (citing Tenn. Code Ann. § 36-5-121(d)(4), (g)(1)). Transitional alimony is a form of short-term support. Generally, if a court does not find rehabilitative alimony (the preferred form) is necessary, but that an otherwise self-sufficient spouse still “needs financial assistance in adjusting to the economic consequences of establishing and maintaining a household without the benefit of the other spouse’s income,” it will award transitional alimony. See id.
Alimony is Discretionary
Moreover, and perhaps most importantly, it should be noted that Tennessee courts are not required to award a party any alimony at all. Indeed, trial judges have the discretion to award alimony and, if so, to determine what form(s) any such award will take based on numerous statutory and equitable factors. Appealing an alimony decision may be possible but is largely dependent on the specific circumstances of each case and the manner in which any such alimony decision was made by the trial judge. While this article has provided a brief overview of the main types of alimony grounded in Tennessee law, it barely scratches the surface of the complexity entailed in litigating for or against alimony awards in a Tennessee divorce. Finally, this article also does not address the important topic of temporary spousal support, another critical factor that can predominate in divorce and set the stage for how long and costly a divorce proceeding can be before a resolution is likely to be reached.
Alimony Litigation Strategy Matters
In any event, when one spouse considers alimony a gift worth litigating to receive, the other spouse is likely to consider it a curse worth litigating to prevent. Even if a divorce case contains factual circumstances strongly indicating alimony will be awarded in some form regardless of how well one party performs over the other at trial, the strategy and effectiveness of the parties in litigation can significantly sway whether the alimony award will be substantial and protracted or trivial and brief. Depending on your age, ability to earn income, profession, and many other factors, fighting for or against an award of alimony could prove critical to ensuring your economic success after the conclusion of your divorce. When divorce puts so much at stake, finding a compassionate and knowledgeable attorney to help guide you through this daunting process is paramount to protecting your rights and securing your livelihood for the future.