Tennessee currently recognizes four different types of alimony, and some of them can be modified or stopped under certain conditions. However, determining when the payments can stop depends on what type of alimony is being paid. The Tennessee Appellate Court recently addressed such an issue in the case of Averitte v. Averitte. (link removed)
Mr. and Mrs. Averitte were divorced in February of 2011. The parties apparently agreed on all the terms of their divorce in a marital dissolution agreement (“MDA”), which contained the following language:
SPOUSAL SUPPORT: Husband agrees to pay Wife periodic alimony in the amount of $1,200 per month for a period of 7 years which is 84 months with the first such payment to be due on February 15, 2011 and a like payment to be due on the 15th day of each and every month thereafter for a total of 84 payments.
Another portion of the MDA referred to the support award as “periodic alimony”, but there was no other language describing what type of support was intended.
Six months later, the ex-wife married another individual, and ex-husband reacted by asking the court to stop the monthly payments. His argument being that Tennessee law refers to “periodic alimony” as being the same as alimony in futuro. As I’ve previously discussed, alimony in futuro terminates automatically upon the death or remarriage of the person receiving the support.
In futuro or in solido?
The ex-wife argued that the support award was alimony in solido, which is not modifiable, except by agreement of the parties. She made this argument because the support was for a definite amount for a definite period of time with no conditions or contingencies. So who is right?
The court quoted this language from an earlier case:
Whether alimony is in futuro or in solido is determined by either the definiteness or indefiniteness of the sum of alimony ordered to be paid at the time of the award. Alimony in solido is an award of a definite sum of alimony. Alimony in solido may be paid in installments provided the payments are ordered over a definite period of time and the sum of the alimony to be paid is ascertainable when awarded. Alimony in futuro, however, lacks sum-certainty due to contingencies affecting the total amount of alimony to be paid.
Therefore, unless the alimony is specifically labeled within the agreement, if the exact amount of support to be paid can be calculated, the court is going to assume it was alimony in solido. In this case, the ex-husband was to make 84 payments of $1,200. A sum of $100,800. With this conclusion, the court said the that payments could not be modified and the ex-husband would have to continue sending her the money.
What if the support had been labeled “alimony in futuro”?
The Court also addressed this issue, since there was a reference to “periodic alimony” in the MDA. The courts have concluded many times that while the label the parties use to describe the support is relevant, it does not control the outcome. The courts will regularly reclassify the support award in order to determine whether or not the alimony can be modified or stopped. So, lawyers can’t get around the limits of one type of support by simply calling it by another name.
If you are having issues similar to this or any family law related issues, contact me so we can talk about how I can help you.