Divorce procedure in Tennessee is generally fairly straightforward, but certain issues are often sure to cause a fight. The most emotional and violent fights tend to be over the custody of the children, but often not far behind is the prospect of one party paying alimony to the other.
Tennessee law provides four different types of alimony, and the distinctions between them can often be confusing. So often so that many appellate court decisions involve a discussion of why the payments described in the divorce decree are labeled incorrectly. This is important, because the different types of support payments operate very differently when considering issues such as whether the payment amount can be modified or terminated altogether.
The four types of alimony are: rehabilitative; alimony in futuro (periodic alimony); transitional; and alimony in solido.
I’m not sure why the legislature continue to incorporate latin in the labels. This is an antiquated way of doing things that seems to have little effect beyond deliberately confusing people. Below, I will describe each type in common language, so perhaps you will have a better understanding how each works.
Consider this stereotypical situation: The husband is the breadwinner who makes enough money to provide the family with a comfortable lifestyle. The wife gives up her career (or schooling) to be a homemaker and chief caretaker of the children. After some years, the couple is getting a divorce.
The obvious problem here is the wife will probably not be able to jump back into the workforce right away and produce enough income to keep herself in a similar lifestyle to what she enjoyed while she was married.
The husband, on the other hand, may find himself with a surplus of income since he’s no longer supporting his wife. Sure, he’ll have to pay child support, but as I’ve mentioned before, the wife will not find the child support sufficient to keep her in her comfortable lifestyle. As it shouldn’t, that’s not the purpose of child support.
In this situation, what the wife may need is some additional schooling, training, or perhaps just experience to bring her income back up to a level where she can support herself at an acceptable level.
In order to accomplish this, the court can order the husband to make support payments to the wife for some period of time while her career is rehabilitated. The court will have to consider what the income potential of the wife is, and how long it will take her to regain that income.
After the divorce is final, the payment amount can be increased, decreased, extended, or terminated by the court if the situation warrants such a change. This makes sense, as often the actual situation turns out to be different that what was anticipated at the divorce.
Finally, rehabilitative alimony will terminate at the death of either party, unless otherwise ordered by the court.
Alimony in Futuro
This form is interesting in that it can be awarded in addition to rehabilitative alimony, and may be paid in a completely different amount and length of time.
Using the example above, suppose the husband is very successful and enjoys an income and lifestyle that the wife will never be able to achieve, even with additional schooling or training. After considering all the facts in the situation, the court could find that it would be more fair to equalize the income of the former spouses. The court can do this by ordering the husband to make alimony payments to his wife for whatever period of time the court decides is appropriate.
As I said above, the court could award rehabilitative alimony to help the wife increase her income as much as is feasible. If this new income still leaves the wife unfairly disadvantaged, the court can order an additional amount of alimony in futuro to supplement her income for the purpose of allowing her to maintain a lifestyle similar to what she had during the marriage.
Similar to rehabilitative payments, this type can be modified by a court if the situation requires. Also, the support will terminate “automatically and unconditionally” at the death or remarriage of the person receiving payments. The payments will also terminate at the death of the payer, unless the court orders otherwise.
The Tennessee statue says this form is used “when the court finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce”.
Once again looking at the example divorce above, suppose the case was that the wife didn’t need any rehabilitation, she had the ability and opportunity to pick up her career where she left off, or maybe she never left the workforce at all.
However, it may be that the property division or other factors are going to leave her in a poor financial situation, or perhaps she will have considerable expenses while she establishes a new household. In a case like this, transitional alimony would be appropriate to help her regain an acceptable lifestyle.
Unlike the above types, by default transitional alimony cannot be modified after the divorce, except that it will be suspended if the receiving party starts living with a third person. However, as part of the divorce, the court can order that the transitional alimony can be modified at a later date, or upon the occurrence of certain conditions.
Alimony in Solido
This is the one that seems to cause everybody trouble. Lawyers (and courts) tend to label the above forms of payments as “alimony in solido”, when the title isn’t appropriate. I’ll explain why in a moment.
This type is most easily understood if you think of it as a property award from one spouse to the other, which may be made in the form of payments. It must be ordered in such a way that it is possible to calculate the total amount to be paid at the time of the divorce. If there is a chance the payment amount can be increased, decreased, terminated, or extended later, it’s not alimony in solido.
The payments don’t even terminate on the death or remarriage of either party. Theoretically, one deceased person’s estate could owe alimony to another deceased person.
What happens is the lawyer for the person receiving support will try to get it classified as “alimony in solido”, even if it’s not. This is supposed to protect their client from any attempt to modify or terminate the payments later, even if doing so would be perfectly appropriate. As a result, appellate courts are often in the position of correcting the label used to describe the alimony, which may allow the payment to be lowered or terminated.
What You Need to Know
The courts only award alimony if the situation is appropriate for it, and in a future post I’ll discuss how the judge will decide if one spouse will make support payments to the other. While not every divorce will result in an alimony payment, many people leave their marriage in a needlessly hopeless financial situation.
If you are facing a divorce but are not in a situation where you’ll be able to support yourself on your own, contact me to find out if an alimony award would be appropriate in your situation.