alimony in tennessee & some trends across the country hon. robert weiss hon. robert weiss...

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 Support-STATUTORY

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) 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) 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) 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;

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 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. Lay an Evidentiary Foundation

Factors of TCA 36-5-121.

2. Apply Appropriate Legal Std.• spouse is economically disadvantaged • spouse is able to continue to enjoy the

same lifestyle/after divorce

3. 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. relative earning capacity, needs, financial resources;

2. relative education and training;

3. duration of marriage;

4. age & mental condition of parties;

5. physical condition of parties;

6. undesirable to work b/c custodian of child;

7. separate assets of each party;

8. provisions of marital property T.C.A. 36-4-121;

9. parties’ std of living established during marriage;

10. extent party contributed;

11. relative fault (court’s discretion); and

12. other factors, such tax consequences.

What is the purpose of Rehabilitative Alimony?

“…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

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? 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 self-sufficiency.

Have the Courts embraced Transitional Alimony?

To reach retirement-Edwards v. Edwards, 2012 Tenn. App. LEXIS 854

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

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 retirement-Nusbaum v. Nusbaum, 2012 Tenn. App. LEXIS 6.

To compensate H for retiring to care for W-Scarbrough 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

NURSE Barnes

DENTIST BARNES

FACTS 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.

W -48 years old, making $40,000 /yr

H -50 years old, making $400,000 /yr

Trial Court: $6,000 Alimony in Futuro.Motion 59.04: $4,300 /mo in rehabilitative alimony for 4 year.

Court of Appeals:Reinstates Trial Court’s First award.ALIMONY IN FUTURO.

AFTER 25 YEARS….

Barnes Ct. App. Court of AGREES with T.Ct.

“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.

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 “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 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 ,

health-foot 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, H-self emp. makes $100k/yr. AIF 3,156/mo alimony

Alimony in Futuro 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 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?

“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 self-reliance.”Kelly v. Kelly, 2013Tenn. App. LEXIS514.

Courts will RESERVE Alimony 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

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 AlimonyAlimony 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 Party-

rebuttable presumption recipient is not in need of alimony;

Court can suspend all or part.

Transitional Alimony (2005) 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?

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

“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. Living together; B. Mixing finances; C. Sharing living expenses; D. Recognizing relationship in

social and family circle; and E. Sharing household chores.

Consequences are different:Automatic modification 1. Alabama; 2. Arkansas; 3. Illinois; 4. Utah; 5. North Carolina; 6. South Carolina; 7. Louisana.

Judge’s Discretion 1. Georgia; 2. New York; 3. Maine; 4. Oklahoma; 5. Missouri; 6. 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 MODIFICATIONSome 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;

3. Agreement provided conditions when alimony would be modified-

contractual.

THANK YOU

QUESTIONS???