Alimony is a legal obligation to pay a spouse or former spouse support. A court may require payments of alimony or spousal support on a temporary or permanent basis, during a divorce proceeding or after the divorce is granted. In addition to the monthly amount and length of term of payments, the type of alimony is very important. There are four types of alimony in Tennessee: alimony in futuro (also called periodic alimony), transitional alimony, rehabilitative alimony, and alimony in solido (also called lump-sum alimony). The type of alimony dictates whether the award may be modified after the divorce and under what circumstances the alimony obligation terminates.
Alimony in futuro (aka periodic alimony)
As a general rule, alimony in futuro (or periodic alimony) is a long-term alimony award when there is a significant disparity in earnings and wealth, and when rehabilitation is not possible. Tennessee law says that alimony in futuro will be owed when the person receiving support cannot expect to have a standard of living comparable to that enjoyed during the marriage.
Alimony in futuro can be modified by the court upon a showing of a change of circumstances. If the supported spouse cohabitates with a third-party, then the court may consider that the support may no longer be needed. Alimony in futuro automatically terminates upon the death of the receiving party or upon the recipient’s remarriage.
Alimony in solido (aka lump-sum alimony)
Alimony in solido, is also a form of long-term support. Alimony in solido is a unique form of alimony used most often to balance out a lopsided property division, usually caused by a large indivisible asset going to one spouse (for instance, the marital home). Courts may also order attorney fees incurred by one spouse be paid by the other spouse using an award of alimony in solido. Depending on the circumstances, Courts may prefer awarding alimony in solido over an award of alimony in futuro.
Most often though, a party will receive an award of alimony in solido when parties settle in mediation and seek to avoid the risks of trial. The payments are either a single lump-sum or a series of payments over time. Alimony in solido is not modifiable. Furthermore, the obligation does not terminate upon the death of the recipient or payor.
Transitional alimony, is appropriate when a court finds that rehabilitation is not required but that the economically disadvantaged spouse needs financial assistance in adjusting to the economic consequences of the divorce. Simply put, this type of alimony aids the person in the transition to the status of a single person. Transitional alimony lasts only for a certain period of time and generally terminates upon the death of the recipient or payor, unless otherwise specifically stated in the divorce decree. Transitional alimony cannot be modified, unless the parties agree to make it modifiable at the time of the initial order of divorce. For many, transitional alimony will be an attractive option because of its certainty and predictability.
Rehabilitative alimony helps a former spouse obtain additional education, training, or experience to rejoin the workforce. This way the former spouse will be able to earn an income to achieve a standard of living comparable to that enjoyed during the marriage. In application, most judges will find self-sufficiency is more the goal than equal standards of living after divorce.
Rehabilitative alimony may be modified by the courts upon a showing of changed circumstances. Additionally, the length of the alimony award can be extended if it is shown that the recipient spouse did make a reasonable effort at rehabilitation, but that effort was unsuccessful. Rehabilitative alimony will terminate upon the death of the payor or recipient.
Tennessee alimony factors
In considering a divorce case and whether alimony should be awarded, Courts consider the following factors:
Basically, everything is considered in determining an award of alimony. Need and ability to pay are often the two most important considerations.
Modification of alimony depends first on the form of alimony awarded, and then on the specific facts applicable to each case. Three of the four types of alimony may be modified under certain circumstances: alimony in futuro, rehabilitative alimony, and transitional alimony. Alimony in solido cannot be modified under any circumstances, except by the agreement of the parties. Each of these types of alimony awards may be awarded during a divorce or legal separation and can be explained by the family lawyer Memphis, TN trusts.
Modifying Alimony in Futuro or Rehabilitative Alimony
Generally, both of these forms of alimony remain in the court’s control for the duration of the award and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circumstances. A change in circumstances is “substantial” when it significantly affects either the obligor’s ability to pay or the obligee’s need for support. A change in circumstances is “material” when the change occurs since the date the alimony was ordered, and the change was not contemplated by the parties at the time of the award of alimony. When determining whether a modification of an alimony award is justified, the court must give equal weight to the need of the recipient spouse and the ability of the obligor spouse to pay.
One basis for a modification of an award of alimony in futuro may be the obligee’s cohabitation with a third party. Specifically, T.C.A. § 36-5-121(f)(2)(B) provides a rebuttable presumption in all cases involving alimony in futuro, where the alimony recipient lives with a third person, either that:
(i) The third person is contributing to the support of the alimony recipient and the alimony recipient therefore does not need the amount of support previously awarded, and the court therefore should suspend all or part of the alimony obligation of the former spouse; or
(ii) The third person is receiving support from the alimony recipient and the alimony recipient therefore does not need the amount of alimony previously awarded and the court therefore should suspend all or part of the alimony obligation of the former spouse.
However, such presumption does not automatically terminate the obligation. Rather, it requires the obligee to show a continued need for the support. As it relates to rehabilitative alimony, the court may modify the award if the recipient spouse is not able to become rehabilitated, despite reasonable efforts to do so. The court may modify the rehabilitative award, where doing so may lead to rehabilitation, such as where the recipient is not able to complete an educational program in the time allowed, due to illness, but may be able to do so with additional rehabilitative alimony. On the other hand, if rehabilitation is not feasible, the court may also order in futuro support, instead.
Modifying Transitional Alimony
Transitional alimony shall be non-modifiable unless:
(A) The parties otherwise agree in an agreement incorporated into the initial decree of divorce or legal separation, or order of protection;
(B) The court otherwise orders in the initial decree of divorce, legal separation or order of protection; or
(C) The alimony recipient lives with a third person, in which case a rebuttable presumption is raised that:
(i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or
(ii) The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse.
T.C.A. § 36-5-121(g)(2). Once a substantial and material change in circumstances has been demonstrated, a court will take into consideration the alimony factors to determine what, if any, modification should be granted.
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