Following up on yesterday’s introductory blog into the topic of alimony, I wanted to provide some information pertaining to the modification and early termination of alimony in Tennessee. Tennessee has four different types of alimony: 1) rehabilitative alimony, 2) transitional alimony, 3) alimony in futuro, and 4) alimony in solido. The classification and character of an alimony award will determine the rules pertaining to future modification or early termination.
In order or terminate or modify alimony in the State of Tennessee, the Court must find that a substantial and material change in circumstances has occurred since the entry of the original support decree. In most cases involving modification of spousal support awards, a change in circumstances is considered to be “material” when the change 1) occurred after the entry of the divorce decree ordering the payment of alimony,” and 2) was not anticipated or contemplated by the parties at the time they entered into the property settlement agreement. Moreover, a change in circumstances is considered to be “substantial” when it significantly affects either the obligor’s ability to pay or the obligee’s need for support, the two most important consideration when setting alimony initially.
Let’s break down the potential modification or early termination of each of the four types of alimony one at a time, starting with alimony in solido.
1) Alimony in solido, AKA lump sum alimony, is a form of long term support, the total amount of which is calculable on the date the decree is entered, but which is not designated as transitional alimony. It may be paid in installments over a period of time. Alimony in solido is not modifiable unless agreed by the parties and is not subject to early termination upon the death or remarriage of either the recipient or the payor. Alimony in solido just is what it is.
2) Rehabilitative alimony is meant to provide the economically disadvantaged spouse, with reasonable effort, an earning capacity that will permit him or her to enjoy a 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. Rehabilitative alimony may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of a substantial and material change in circumstances. To be extended beyond the term initially established by the court, or to be increased in amount, or both, the recipient of the rehabilitative alimony shall have the burden of proving that all reasonable efforts at rehabilitation have been made and have been unsuccessful. Additionally, rehabilitative alimony shall terminate upon the death of the recipient or upon the death of the payor.
3) Alimony in futuro is made on a long term basis or until death or remarriage of the recipient. It is typically awarded when rehabilitation is not feasible. Alimony in futuro may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circumstances. Also, when a person is receiving alimony in futuro and the alimony recipient lives with a third person, a rebuttable presumption is raised that: 1) the third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or 2) the third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse. Also, alimony in futuro terminates automatically and unconditionally upon the death or remarriage of the recipient or upon the death of the payor.
4) Transitional alimony is awarded 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, legal separation or other proceeding where spousal support may be awarded. Transitional alimony is nonmodifiable unless: 1) the parties otherwise agree in an agreement incorporated into the initial decree of divorce or legal separation, or order of protection; 2) the court otherwise orders in the initial decree of divorce, legal separation or order of protection; or 3) the alimony recipient lives with a third person, in which case the same rebuttable presumption is raised as for rehabilitative alimony. Transitional alimony also terminates upon the death of the recipient or the payor.
In summary, the future modification or termination of an alimony award or agreement will depend, in large part, on the type of alimony is awarded. This is one reason it is important to hire an experienced family lawyer for any divorce rather than a lawyer less familiar with the extent and complexities of family law.
Ryan C. Smith's Tennessee Family Law Blog 