Court Swaps Transitional Alimony for Alimony in Futuro

Court Swaps Transitional Alimony for Alimony in Futuro

Background

Thinking about moneyThe parties were married in 1993.  The wife had a high school education and took some college classes, but she never received a degree.  The husband completed a medical degree in Chicago, then moved the family to Nashville, where he began to practice medicine at Vanderbilt University.

The parties had agreed that the wife would stay home and raise the children while the husband would build his career.  Eventually the husband’s yearly income rose to over $360,000 per year.  After about 17 years of marriage, the husband filed for divorce.

Trial court awards transitional alimony

The trial lasted 3 days.  After both parties had put on their proof, the court found that both parties were 45 years of age, in good health, employed, and (at the time of trial) had been married for 19 years.  The court held that the husband’s yearly income was approximately $360,000 and the wife’s was only about $36,000.  The court decided that the wife was at an economic disadvantage and she would be awarded transitional alimony at $3,000 per month for a period of 5 years.

Furthermore, each party was ordered to pay their own attorney’s fees.  During the course of the case the wife had incurred about $136,000 in attorney’s fees and the husband’s attorney’s fees were about $78,000.  Note that while these fees are high, the case went on for two years before the parties even got to trial, plus there are numerous issues in this case that I’m not covering in this post.

The wife appealed the award of alimony and the division of attorney’s fees.

Appellate court modifies alimony award

The appellate court wrote and extensive review of the different types of alimony.  The court noted that alimony in futuro is intended to provide support on a long term basis, and is appropriate when

there is relative economic disadvantage and that rehabilitation is not feasible, meaning that the disadvantaged spouse is unable to achieve, with reasonable effort, an earning capacity that will permit the spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse . . . .

(Quoted from Tenn. Code Ann. § 36-5-121(f)(1))

The court further pointed out that transitional alimony is most appropriate when

a court determines that rehabilitation is not necessary, but the economically disadvantaged spouse needs help adjusting to the economic consequences of a divorce. … This type of alimony has been described as assisting a person in transition become adjusted to the status of living as a single person.

The judges then reviewed the factors courts are to consider when awarding alimony, which can be found in this post, then concluded as follows:

Wife contends that regardless of any effort on her part, she will never be able to earn enough to match the standard of living she enjoyed during her marriage, or the standard of living Husband will continue to enjoy post-divorce. The record supports that argument.

The proof shows that Wife is 45 years old and that, with the agreement of Husband, she stayed at home to take care of the parties’ children while Husband pursued his education and career as a doctor. Although Wife is able-bodied, it is not realistic to believe Wife can be rehabilitated to the extent that she will be able to achieve a standard of living comparable to the standard of living of the parties prior to the divorce or to the standard of living Husband is expected to enjoy post-divorce. Consequently, Wife is not capable of rehabilitation as defined by statute.

As the general assembly has found,

“[T]he contributions to the marriage as homemaker or parent are of equal dignity and importance as economic contributions to the marriage. Further, where one (1) spouse suffers economic detriment for the benefit of the marriage, the general assembly finds that the economically disadvantaged spouse’s standard of living after the divorce should be reasonably comparable to the standard of living enjoyed during the marriage or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.”

The evidence shows that Wife has taken steps to make herself more marketable by becoming a licensed real estate agent and earning her certification as a surgical technologist. However, the best job she has been able to find pays just 1/10 of the amount Husband earns in a year as a physician.

Having determined that Wife is not able to be rehabilitated, we find that the trial court erred in failing to award Wife alimony in futuro.

Wife’s alimony award was changed from transitional alimony to alimony in futuro, at a rate of $4,500 per month.  The court mentioned that while this amount may not fully restore her to the lifestyle to which she had become accustomed during the marriage, the reality is that persons living separately incur more expenses than when they’re living together.

Help with attorney’s fees

Money burningAn award of attorney’s fees is essentially an award of alimony in solido. As with other forms of alimony, the court must consider the needs of the disadvantaged spouse and the financial ability of the other spouse.

In this case, the wife was awarded a substantial amount of the husband’s retirement account.  Enough to pay her attorney’s fees of around $136,000.  However, in order to do this, she would have to liquidate the retirement funds, incurring significant fees and tax penalties.  Furthermore, she would never have the same ability husband has to replenish those funds.

In light of these facts, the court ordered the husband to pay one-half of wife’s attorney’s fees, along with the remaining support ordered.

Need help?

If you are in a similar situation, I would be happy to talk to you about how I can help you resolve these issues.  Please contact me to find out what I can do for you.

Want to read the case for yourself?  Jim Najib Jirjis v. Tammy Sue Jirjis