The decision on whether to separate and divorce or attempt to stay together often hinges on the financial effect such a decision brings on. And for many women that we help guide through divorce here in Memphis one of the most significant issues is that of alimony (also called spousal support).
We’ve found that often times husbands use the fact that they are the primary breadwinner to attempt to “blackmail” their wife to stay with them by stating that if they leave they won’t get anything and won’t support them. But if the husband has assets that were created and gathered during the marriage and the wife has relied on her husband to provide for her, then under most circumstances he is going to be required to pay some type of alimony. So don’t listen to anything your husband says, I guarantee that he’s not looking out for your best interests.
Tennessee law provides for alimony (spousal support) to allow the spouse who was reliant on the other a way to ease through the divorce process and either transition to a point where they can earn a living and support themselves or to live a lifestyle in which they have become accustomed to. But the question of alimony and how much one party gives and one party receives can be an extremely contentious matter. Retaining a divorce attorney can help by not only placing discussion between the professionals rather than the parties but also by providing the legal expertise you might need to achieve the best results for all involved.
In Memphis, Tennessee there are the following five types of alimony that may be awarded during divorce:
Periodic or alimony in futuro - This type of alimony is generally awarded in divorce when the court finds that the wife needs ongoing support in order to continue to maintain (or maintain as closely as possible) the lifestyle that she was accustomed to living during the marriage. This type of alimony is usually only given in marriages of significant length (more than 20 years), where there is a large discrepancy in income levels, and usually the wife has relied on the husband’s income while she took care of the family and marital home. Additionally, this kind of alimony may be modified by the court (both upwards and downwards) in the future. This can occur years after the divorce is granted, for example if the husbands income changes significantly in the years following divorce.
Rehabilitative Alimony – This type of alimony may be awarded in order to help the wife “rehabilitate” herself. These days, in essence this is alimony that is paid a wife who may need to go back to school and get an education that would allow for her to eventually get a job that would allow her to achieve a standard of living similar or reasonably comparable to the one she had during the marriage. This type of alimony is more common when the husband may not have an extremely high income but there is still a significant disparity in incomes. It is also more commonly given in mid-length marriages (7-20 years) where the wife stayed home and supported the family and marital home. This type of alimony may also be jointly given along with periodic alimony in futuro, and it may be modified in the future by the court.
Transitional Alimony - This is the newest of the types of alimony that Tennessee law provides for. It’s almost a hybrid offset of Rehabilitative Alimony. When Transitional Alimony is awarded the courts are saying that full “rehabilitation” isn’t needed, but there does need to be some type of alimony given that will allow for the wife to transition from her married life to her new single life and economic reality. This type of alimony is given generally in shorter marriages (less than 10 years) where the wife may have taken time away from her career to raise a family, but does have a skill set that she can use to get back into the workforce without extensive “rehabilitation” being needed. It also may be given in a short marriage where the wife gave up some type of assets or benefits in reliance on the marriage continuing. This type of alimony is given for a certain amount of time and is not usually able to be modified in the future by the court.
Lump Sum or alimony in solido – This type of alimony may come in several different forms. It may be received in one big lump sum or it may be stated as a lump sum but paid out over time in installments payable over a definite period of time. The courts often use lump sum alimony to try to make the spouses financially as close to equal as possible in short to mid-length marriages. This type of alimony is not able to be modified after the divorce by the court. When a husband is ordered by the court to pay a wife’s attorney fees this is usually done so as alimony in solido.
Temporary or pendente lite alimony - This is alimony that may be granted by the courts prior to the final divorce hearing. This is only granted when your attorney files a Motion for Alimony Pendente Lite and the court finds that it is necessary for the support and maintenance of the wife to be granted alimony while the divorce is pending. The court may look at how much the wife needs to live on and support her children, pay the expenses for job training and education. and prosecute or defend her divorce case while the divorce is pending. The court does not want one spouse living like a pauper while the other lives like a prince before the final hearing takes place.
Tennessee takes the following list of factors into consideration when calculating what type of alimony and the specific amounts to be awarded:
- The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and other sources;
- The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party’s earning capacity to a reasonable level.
- The duration of the marriage.
- The age and mental condition of each party.
- The physical condition of each party; including, but not limited to, physical disability or incapacity due to a chronic debilitating disease.
- The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage.
- The separate assets of each party, both real and personal, tangible and intangible.
- The provisions made with regard to the marital property as defined in Tennessee Code Annotated Section 36-4-121.
- The standard of living of the parties established during the marriage.
- The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party.
- The relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so; Although fault is an appropriate factor to consider, alimony is not meant to be punitive.
- Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
*Note that the two most important factors that determine how much alimony will be awarded are the need of the disadvantaged spouse (#1 most important) and the other spouse’s ability to pay (#2 most important). The amount of the alimony should be determined so “that they party obtaining the divorce (is not) left in a worse financial situation than he or she had before the opposite party’s misconduct brought about the divorce.”
For further information on Tennessee’s alimony laws, please click here.