Tennessee Appellate Court Reverses Lower Court’s Alimony In Futuro Ruling

In Tennessee, there are four different types of alimony as provided at TCA 36-5-121: alimony

  • Rehabilitative Alimony is awarded to help a spouse who’s been out of the workforce or who doesn’t have the ability to earn an income enjoy a standard of living similar to the one that he or she had during marriage. The court typically orders rehabilitative alimony so that a spouse can go to school or get training in order to earn more money.
  • Alimony in Futuro (also called Periodic Alimony) is an order for support that will be paid over a long period of time to a spouse who is unable to earn enough income to enjoy an appropriate standard of living. This type of alimony is more common where the marriage was long and the spouse has little chance of returning to the workforce at full capacity.
  • Transitional Alimony is support paid for a definite period of time when rehabilitation is not necessary but one spouse needs some time to adjust to new financial circumstances after separation or divorce.
  • Alimony in Solido (also called Lump Sum Alimony) is a form of long term support where the court calculates the total amount of support at the time of the order. Payments may be made in installments in a set amount over a certain period of time.

The facts of Ezekiel v. Ezekiel are Angela Rose Kee Ezekiel (Wife) filed a complaint for divorce on October 3, 2012 against David Ezekiel (Husband). At that time, the parties had been married approximately 24 years and the marriage had produced no children. Wife was 58 years old, in good health, and working full-time while Husband was 47 years old, in fair health, and also working full-time. The complaint alleged irreconcilable differences.

In addition to an equitable division of the marital property, Wife requested temporary and permanent alimony. Husband filed an answer and counter-claim admitting that irreconcilable differences existed and that the parties’ marital property should be equitably divided. Husband denied, however, that Wife was entitled to alimony, either temporary or permanent. In addition, Husband alleged that wife was guilty of inappropriate marital conduct. The parties participated in mediation on August 21, 2013, which mediation was unsuccessful.

Mediation failed and a trial was held and the Wife requested $700 per month in alimony in futuroThe trial court, however, awarded Wife $250 per month in alimony in futuro until she retired from her employment. Thereafter, Wife was to receive $100 per month, payable until Wife’s death or remarriage.

Husband appealed to The Court of Appeals of Tennessee at Jackson arguing that the trial  court erred in awarding Wife alimony in futuro in the amount of $250.00 per month until she retired and $100.00 per month thereafter.

After reviewing the record, the Appellate Court concluded the following:

Based upon the undisputed facts in the record, Husband simply does not have the excess income to pay Wife support of this amount. In addition, Wife has independent funds with which to finance her retirement, including her pension with the penitentiary, her 401K, and the funds awarded to her from Husband’s 401K, as well as her social security benefits, as specifically found by the trial court. Given these funds, it is not clear that Wife will be in need of alimony even after her retirement; thus, despite the long duration of the parties’ marriage, the presumption in favor of rehabilitative or transitional alimony inherent in the Tennessee alimony statute militates in favor of short-term support. Consequently, the trial court’s own findings regarding Wife’s expenses, the purpose of the alimony award to Wife, and Husband’s excess income, do not support the alimony award in this case.

Based upon the foregoing, we have determined that Wife has a significant need for spousal support and Husband has some ability to pay. Accordingly, we conclude that Wife is entitled to an award of $43.00 per month in transitional alimony, to be paid until her retirement.

Therefore, the trial court’s ruling as it related to alimony was reversed with the amount of the award being lowered from $250 to $43 per month. Additionally, the type of alimony was changed from alimony in futuro to transitional alimony that is to end when Wife retires.

If you are considering divorce and concerned about unfairly having to pay alimony when your spouse has approximately the same income and retirement savings as you, you should seek the services of an experienced family law attorney. Contact attorney Donna Wagner for a consultation.

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