ALIMONY IN TENNESSEE
&
SOME TRENDS ACROSS THE
COUNTRY

Hon. Robert Weiss
Circuit Court

Division VIII


Amy J. Amundsen

Rice, Amundsen &
Caperton, PLLC

amy@ajamundsenlaw.com
Types of Spousal SupportSTATUTORY
Alimony in Futuro (1949)
Alimony In Solido (1949)
Rehabilitative Alimony (1983)
Transitional Alimony (2005)
Alimony in Futuro (1949)
36-5-121 (f)=periodic alimony
 Long term-until death/remarriage of recipient;
 Rehab is not feasible;
 Remains in court’s control --“substantial and
material circum”;
 Lives with TP-rebuttable presumption;
 Shall terminate -death/remarriage
payee/payor, unless stated otherwise**;
 Taxable to payee.
Alimony In Solido (1949)
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36-5-121 (h)=lump sum alimony;
Definite amount, paid over time,
ascertainable when awarded;
Attorney fees;
Not modifiable, except by agreement of
parties;
Shall not terminate upon death/remarriage
of recipient or payor.;
Not taxable to payee.
Rehabilitative Alimony (1983)
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36-5-121(e)=achieve, w/ reas effort, earning
capacity permits SOL comparable to
marriage or after divorce SOL by other
spouse.
Modifiable. Burden payee-must prove
unsuccessful efforts rehab;
Shall terminate death of payee;
Shall terminate death of payor, unless
stated otherwise;
Taxable to payee.
Transitional Alimony (2005)
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36-5-121(g)=sum of $ paid to sp/benefit for
determinate time.
Rehab is not necessary, but need to adjust;
Nonmodifiable unless: parties agree, court
orders, live in lover;
Shall terminate upon death of payee/payor,
unless stated otherwise;
Taxable to payee.
Combinations of Alimony-amended
statute.

Alimony in Futuro+ Rehabilitative Alimony;

Alimony in Solido+ any or all of the other
types;
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Alimony in Futuro+ Transitional Alimony;

Rehabilitative Alimony-NOT combined with
Transitional Alimony.
Are Courts More Likely to Award
No Alimony?
How are Courts interpreting the
statute and the four types of
Alimony?
Are the Courts awarding Alimony
in Tennessee?
Tennessee Courts
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Courts have broad discretion
Careful balancing of factors:
• Need of spouse
• Obligor’s ability to pay
Public policy preference for RA or TA over
AIF or AIS.
If not going to award RA or TA, ct must state:
• Why it is inappropriate; and
• Provide a factual and legal basis for the type,
amount, and duration of the award.
Standard of Review

“
“We
begin our
analysis with the
presumption that the
trial court’s decision
was the correct
decision and review
the evidence in the
light most favorable
to that decision.”
Gonsewski, 350
SW3d 99 (Tenn. 2011)
What should the Practitioner do?
1.
2.
•
•
3.
Lay an Evidentiary Foundation
Factors of TCA 36-5-121.
Apply Appropriate Legal Std.
spouse is economically disadvantaged
spouse is able to continue to enjoy the
same lifestyle/after divorce
Provide Court with Acceptable
Range.
Standard of Living

During the marriage vs. after the marriage
a. Monthly Expenses
b. Compare expenses
c. Life expectancy of each spouse
d. Distribution of Marital Assets
e. Investment /rate of return.
(i) Factors court shall consider:
1.
2.
3.
4.
5.
6.
relative earning capacity, needs,
financial resources;
relative education and training;
duration of marriage;
age & mental condition of parties;
physical condition of parties;
undesirable to work b/c custodian of
child;
7.
8.
9.
10.
11.
12.
separate assets of each party;
provisions of marital property
T.C.A. 36-4-121;
parties’ std of living established
during marriage;
extent party contributed;
relative fault (court’s discretion); and
other factors, such tax
consequences.
What is the purpose of
Rehabilitative Alimony?
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“…designed to increase an economically
disadvantaged spouse’s capacity for self-sufficiency.”
“Intended to assist an economically disadvantaged
spouse to acquire additional education, job skills,
training, as a way of becoming more self-sufficient.”
Owens v. Owens, 2013 Tenn. App. LEXIS 499.
Nita v. Nita, 2014 Tenn. App. LEXIS 50, overturned T
Ct. ruling of rehabilitative & changed to TA because
court did not rule to return to school or training.
Rehabilitative Alimony even
when misbehaving…
Berg v. Berg, 2014 Tenn. App.
LEXIS 373
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33-yr H and W primarily lived off income
from family businesses (inherited).
H filed divorce- W’s adultery.
W –RA $8,000/mo for 10 yrs. Divorce
awarded to H -adultery and inappropriate
marital conduct.
“but an economically disadvantaged
spouse is not insulated from monetary
sanctions of $100k”
WHAT DID MRS. BERG DO?
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WHY DID SHE GET SANCTIONED FOR:
1. 5 MOTIONS TO COMPEL--DENIED
2. 8 MOTIONS FOR CONTEMPT--DENIED
3. 1 MOTION FOR TO RECONSIDER
SANCTION-- DENIED
4. AT LEAST 5 CONTINUANCES
5. 7 DIFFERENT LAWYERS.
CT. W dissipated $90k in assets by willfully
failing to sign jt. return. “W engaged in
angry, critical, verbal abuse.”
What is the purpose of
Transitional Alimony?
To bridge the gap, it is support designed to
smooth the transition of a spouse from
married to single life.
Mayfield v. Mayfield, 395 S.W.3d 108 (Tenn.
2012).
Spouse already possesses capacity for selfsufficiency.
Have the Courts embraced
Transitional Alimony?

To reach retirement-Edwards v. Edwards, 2012
Tenn. App. LEXIS 854
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To pay for monthly expenses as W finishes
school-Tippens-Florea v. Florea, 2012 Tenn.
App. LEXIS 361.

To compensate W for giving up a good job in
GA to pursue H’s career-Chavez v. Chavez,
2012 Tenn. App. LEXIS 8
Other examples of TA being
awarded
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To compensate W for giving up job and moving
to TN-Gorbet v. Gorbet, 2012 Tenn. App.
LEXIS 714.
To provide support to spouse until retirementNusbaum v. Nusbaum, 2012 Tenn. App. LEXIS
6.
To compensate H for retiring to care for WScarbrough v. Scarbrough, 2012 Tenn. App.
LEXIS 368.
More cases awarding TA

Nita v. Nita, 2014 Tenn. App. LEXIS 50.
• 17-yr. H, 61, laborer $18/hr. W, 45, various $8/hr. RA
awarded $800/mo for 7 yrs. Support reclassified from
“rehabilitative” to “transitional,” as the alimony to adjust to
the “economic consequences of divorce.”

Holifield v. Holifield, 2014 Tenn. App. LEXIS 59.
• 26-yr H, 46, dentist, $1m/yr. W, 46, dental asst.$70k/yr. W
granted div. inapp. COA affirmed TA ($7k/mo for 12 mo) +
AIF (5k/mo). H had sexual rel/ship 26 women, but argued
tremors and disability. Ct. “apparent disability does not
impede his ability to be a business man…3 offices 40
employees.”
Barnes v. Barnes, 2014 Tenn. App.
LEXIS 200
DENTIST
BARNES
NURSE Barnes
FACTS
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MARRY after W graduates
from Nursing School.
H still in Dental School.
Graduates 2 years later,
enters Navy, 3 years in
Navy as Lt., left active
duty in 1989.
Private Practice. W-works
with H in practice, then
back to the hospital 4
days/wk.
H -50 years old, making
$400,000 /yr

W -48 years old,
making $40,000 /yr
Trial Court: $6,000
Alimony in Futuro.
Motion 59.04: $4,300
/mo in rehabilitative
alimony for 4 year.
AFTER 25 YEARS….
Court of Appeals:
Reinstates Trial Court’s
First award.
ALIMONY IN FUTURO.
Barnes Ct. App. Court of AGREES
with T.Ct.
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“Wife is not able to be rehabilitated…
“GIVEN THE AGE OF THE PARTIES IT
IS unreasonable to believe Wife will be
able to level the playing field to draw even
with Husband in education and training,
“she will not be able to improve her
earnings in such a way she will keep pace
with Husband’s ability to earn.”
Alimony In Futuro

Barnes v. Barnes, 2014 Tenn. App. LEXIS 200.
• 25-yr H, 50, dentist, $400k/yr. W, 48, nurse
$40k/yr. AIF of $6,000/mo.
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Fogle v. Fogle, 2014 Tenn. App. LEXIS 294.
• 30-yr. H, 52, HS diploma,$50k/yr. W, $464/mo as
shoe salesman. “did not have ability to support
herself” AIF $1,ooo/mo.

Hartline v. Hartline, 2014 Tenn. App. LEXIS 7.
• 25-yr, H adultery. H, 63 , dentist, $12,800/mo. W, 51,
dental asst, unable to work due to declining health.
AIF $3,800/mo AIF “to enable W to live on her own”.
Court’s findings in FOGLE
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“W is incapable of economic rehabilitation
and award of TA would have been
inappropriate when record lacked
evidence that W had capacity of self
sufficiency.”
“W lacks experience and skills necessary
to maintain household without benefit of
long term support.”
MRS. FOGLE
Alimony In Futuro
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Henderson v. Henderson, 2014 Tenn. App. LEXIS
587.
• 20-yr H, TVA employee, $100k/yr. W $650/mo at salon.
CT:$2,100/mo AIF, as her financial needs are great –
earning capacity very limited.

Jiris v. Jiris, 2014 Tenn. App. LEXIS 260.
• 19-yr . H, MD, $360k/yr. W, 45 homemaker/real estate
agent, $36k/yr. CT AIF $4,500/month. W could not
achieve the same standard of living as her ex-spouse,
absent AIF.

Layman v. Layman, 2014 Tenn. App. LEXIS 177.
• 29-yr H, surgeon, $400k/yr. W, teaching degree , healthfoot and back problems. AIF of $7,500/month awarded
due to health.
Alimony In Futuro

Halliday v. Halliday, 2012 Tenn. App.
LEXIS 856, AIF of $2,500/mo, W-teacher,
H-$600-1mil/yr, W only able to achieve
partial rehabilitation upon gainful
employment.

Dodd v. Dodd, 2013 Tenn. App. LEXIS 10,
W-56 yr.teacher, shortfall $3,156/mo, Hself emp. makes $100k/yr. AIF 3,156/mo
alimony
Alimony in Futuro
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Willocks v. Willocks, 2013 Tenn. App. LEXIS
18, AIF $900/mo, 17 yr. mar.
Longanacre v. Longanacre, 2013 Tenn. App.
LEXIS, AIF $1,250, due to W’s brain injury in
fall.
Beyer v. Beyer, 2013 Tenn. App. LEXIS 229,
AIF $8,500/mo, $413,625 atty fees.
Holt v. Holt, 2013 Tenn. App. LEXIS 253, AIF
$2,000/mo, 24 yr., W-57 yrs, H-64 yrs.
Alimony In Futuro

Ruiz v. Ruiz, 2014 Tenn. App. LEXIS 681.
• 30-yr AIS modified to AIF $1,000/mo, W’s high school
degree, little work experience, nearly 50 yrs old, cannot
be self sufficient, get education -near retirement, AIS
award would leave her subject to ward of the State.
Salvucci v. Salvucci, 2014 Tenn. App. LEXIS
511.
• 27-yr H, 58, cardiologist, ~$500k/yr. W, 54,
homemaker.
• $10,850/mo AIF, W out of the workforce for 25 yrs,
no marketable skills, nearing retirement age. W
cannot return to ct. to modify due to taxable to
recipient not unforeseen. COA reversed TCT
inc.AIF
Alimony in Futuro
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Parrish v. Parrish, 2013 Tenn. App. LEXIS 409,
AIF $850/mo, 30yr. Mar.
W-47 yr, H-49 yr.
Owens v. Owens, 2013 Tenn. App. LEXIS
4999, $2,000/mo. (converted RA to AIF before
RA was to terminate)
Hernandez v. Hernandez, 2013 Tenn. App.
646, AIF $50/mo. Nominal alimony due to H
unemp.at time of div.
Does AGE really matter?
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“Wife was 55 years of age, and we do not
believe it is realistic to expect that she will be
able to effectively compete for employment as
she nears age at which many retire.”
Jekot v. Jekot, 232 S.W. 3d 744, 753 (Tenn.
Ct. App. 2007) quoting in Hernandez v.
Hernandez, 2013 Tenn. App. LEXIS 646.
40 SOMETHING
??
A Wife, healthy
individual in her
forties with a
college education, is
in a fair position to
achieve selfreliance.”
Kelly v. Kelly, 2013
Tenn. App. LEXIS
514.
Courts will RESERVE Alimony
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Done sparingly and only in unique factual
situations. Perry v. Perry, 2002 Tenn.
App. LEXIS 219.
Walton v. Walton, 2005 Tenn. App. LEXIS
470, reserve to determine W’s disability
benefits.
Robinette v. Robinette, 726 S.W. 2d at
525, reserved alimony in light of W’s
health condition.
Reserve Alimony Awards
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
Lawson v. Lawson, 1998 Tenn. App.
LEXIS 339, reserves alimony in the event
W’s employment with H’s family business
is terminated without cause.
Vinson v. Vinson, 2013 Tenn. App. LEXIS
593, court reserved alimony in the event H
was successful in discharging his ordered
obligations.
Alimony In Solido

Peterson v. Peterson, 2014 Tenn. App.
LEXIS 52.
• 25-yr W divorce after assault. H retired.
W $3k/mo. H dissipated large portion of
marital account and accrued high legal fees
(both criminal and civil).
• W awarded $10k of AIS to enable her to pay a
portion of her legal fees.
MODIFICATION OF
ALIMONY
Rehabilitative Alimony
Alimony in Futuro
Transitional Alimony
(it depends)

Rehabilitative Alimony (1983)
36-5-121(e)
 No cohabitation language in
statute.
 Modifiable upon showing
substantial and material
change in circumstances.

Alimony in Futuro (1949)
36-5-121 (f)
 Lives with Third Partyrebuttable presumption
recipient is not in need of
alimony;
 Court can suspend all or part.
Transitional Alimony (2005)
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36-5-121 (g).
Nonmodifiable unless: parties agree, or
court orders.
Lives with Third Party-rebuttable
presumption recipient is not in
need of alimony;
Court can suspend all or part.
Alimony In Solido (1949)
36-5-121 (h)
 No cohabitation language in
statute;
 Not modifiable, except by
agreement of parties.

What if Recipient Lives with
Obligor?
Benedict v. Benedict, 2014 Tenn. App.
LEXIS 298.
MDA awarded W $3,400/mo for 60 months.
Parties divorce. Ex W and children move
into Ex H’s house for 4 yrs. Ex W wants Ex
H held in contempt of court.
TCt. Ex W waived right to receive alimony
while living together. Ex H does not owe
any alimony to Ex W. COA. Affirmed.

What if Third Party is Adult Son?
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Hickman v. Hickman, 2014 Tenn. App.
LEXIS 91.
W living with 18 yr old son, H tries to
reduce W’s TA. COA found T.Ct. erred in
reducing support due to W’s expenses,
frugal lifestyle and monthly shortfall. W
paying son’s health ins., car ins.=$625/mo
TA: $1,250/mo for 24 mo; $1,000/mo for
24 mo; $850/mo for 24 mo. 21yr
marriage.
Tip: consider adding to MDA


Make exceptions for relatives, ie. adult
children, parents, other relatives, to the
definition of “third person.”
Reinstate alimony to the level and
duration of the initial award, when/if a third
person leaves the home of recipient or
recipient leaves TP home.
Tip: Other Provisions to Use
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“If arrearages exist at the time of
cohabitation of recipient, then all arrears
shall be paid in full before alimony is
suspended.”
“If recipient lives with obligor, then alimony
automatically is suspended until recipient
leaves the home of the obligor.”
What about Remarriage?
What does MDA say?

Miller v. McFarland, 2014 Tenn. App. LEXIS
303.
• 14-yr, W $929/mo for 8 yrs. W remarries.
H= TA, subject to modification. W=AIS.
• COA says TA and thus, modified.
“MDA states that the purpose of the alimony
is to provide for W who is economically
disadvantaged.”
What does the MDA say?

Vick v. Hicks, W2013, 11/17/2014,
MDA contained non-modification
clause with respect to H’s alimony
obligation. Wife remarries. H wants
to modify/terminate. TCT grants W’s
motion to dismiss. COA affirms.
TRENDS ACROSS THE
COUNTRY
ALIMONY REFORM

1. COHABITATION

2. ENDING DATES FOR ALIMONY

3. RETROACTIVE MODIFICATION
1. COHABITATION –defined:
Varies from state to state:
a.Man and woman in romantic
relationship…amended to “TP”;
b.Holds themselves out as married;
c. Lives with TP & financial benefits;
d.Different time requirements.
Some Factors Court Considers

A.
B.
C.
D.
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E.
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Living together;
Mixing finances;
Sharing living expenses;
Recognizing relationship in
social and family circle; and
Sharing household chores.
Consequences are different:
Automatic
modification
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1.
2.
3.
4.
5.
6.
7.
Alabama;
Arkansas;
Illinois;
Utah;
North Carolina;
South Carolina;
Louisana.
Judge’s Discretion
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1.
2.
3.
4.
5.
6.
Georgia;
New York;
Maine;
Oklahoma;
Missouri;
South Carolina (as
to rehabilitative
alimony);
7. Tennessee.
Rebuttable Presumption
1. “3rd person contributes to the
support of the alimony recipient and
all or part of the alimony obligation
should be suspended;
2. 3rd person receives support from the
alimony recipient and all or part of
the alimony obligation should be
suspended.”
TENN. CODE ANN. 36-5-121.
Cohabitation statutes across the
USA
2
LIMITS ON DURATION
STATUTES:
• Utah: Length of Marriage
• Mass: % of years of marriage;
• Del: less than 20 yrs- ½ marriage. Over 20 yrs.- unlimited.
• Florida: less than 20 yrs-.25 times no.yrs married;
over 20 yrs-.75 times no. yrs.
BILLS:
•Oregon Bills: ½ duration
• Missouri Bill: No more than 10 years;
• New Hampshire Bill: limit renewal.
3. RETROACTIVE MODIFICATION
Some courts allow retroactive
modification prior to date of filing and
notice to party- back to modifying
event;
Courts enforce parties agreement on
retroactivity;
Courts modify when statute provides
for automatic termination.
Theories for retroactive
modification

1. Restitution-person conferred a
benefit/inequitable to keep benefit.

2. Fraud-attempt to hide remarriage;
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3. Agreement provided conditions when
alimony would be modifiedcontractual.
QUESTIONS???
THANK YOU