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Alimony Modification in Tennessee
More and more family lawyers all over the country are seeing a resurgence of alimony
modification actions. Is modification of alimony possible in Tennessee? It depends on the type
of alimony originally awarded. Alimony in solido and transitional alimony are not modifiable.
Periodic alimony, also called alimony in futuro, and rehabilitative alimony can be modified
under certain circumstances. So, 2 of the 4 types of alimony in Tennessee can be modified.
The first way alimony can be modified is upon death or remarriage.
ALIMONY IN FUTURO
T.C.A. § 36-5-121(f)(3) provides:
An award for alimony in futuro shall terminate automatically and unconditionally upon the
death or remarriage of the recipient. The recipient shall notify the obligor immediately
upon the recipient's remarriage. Failure of the recipient to timely give notice of the
remarriage shall allow the obligor to recover all amounts paid as alimony in futuro to the
recipient after the recipient's marriage. Alimony in futuro shall also terminate upon
the death of the payor, unless otherwise specifically stated.
ALIMONY IN SOLIDO
Alimony in solido is does not terminate upon the death or remarriage of the recipient
or the payor.
REHABILITATIVE ALIMONY
Rehabilitative alimony terminates upon the death of the recipient or payor, unless
otherwise specifically stated.
Rehabilitative alimony does not automatically terminate upon the remarriage or cohabitation
of the recipient. Remarriage or cohabitation could, however, be found to be a substantial
change of circumstances. What is a substantial change of circumstance will be discussed more
in a second.
TRANSITIONAL ALIMONY
T.C.A. § 36-5-121(g)(3) provides:
Transitional alimony terminates upon the death of the recipient or upon the death of the
payor, unless otherwise stated in the divorce.
Transitional alimony shall terminate upon the occurrence of other including, but not
limited to, the remarriage of the party receiving transitional alimony.
Now, COHABITATION is also another big issue which also depends on the type of alimony.
ALIMONY IN FUTURO (also Periodic) and Transitional Alimony have the same provisions regarding
cohabitation.
If the recipient lives with a third person, a rebuttable presumption is raised that:
(i) 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
(ii) 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.
But, this presumption is rebuttable.
ALIMONY IN SOLIDO does not terminate based on cohabitation.
REHABILITATIVE ALIMONY
The statutes do not specifically cohabitation relating to rehabilitative alimony, since
rehabilitative alimony is modifiable in general, so I suspect it is possible.
As discussed above, for rehabilitative alimony and alimony in futuro, Tennessee law provides
that “modifications of alimony may be granted only upon a showing of a substantial and material
change in circumstances since entry of the original support order.” Tennessee law also
states: “In order to be material, a change in circumstances must have been unforeseeable,
unanticipated, or not within the contemplation of the parties at the time of the decree.”
And, “To be considered substantial, the change must significantly affect either the
obligor's ability to pay or the obligee's need for support.”
A large increase in income for supporting spouse or supported spouse are two obvious
changes of circumstances. Another change could be the supported spouse needing more support
due to illness and not being able to work.
What’s an example of something not being a change of circumstance? If the supported
spouse was not employed at the time of the original decree and but is employed now is
not legally relevant to the Court’s determination. In order to prove a change of circumstance,
the supporting spouse must also show that the original alimony ruling was predicated
upon a “presumption that the [former] wife would not continue to increase income through
pursuit of her career.”
In modifying alimony, the courts are directed to once again apply the same factors originally
used when making an initial alimony award. Tennessee law states: “Modification must
also be justified under the factors relevant to an initial award of alimony, particularly
the receiving spouse’s need and the paying spouse’s ability to pay.” Also, “When
assessing the issue of modification of alimony awards, trial courts are directed to consider
the factors contained in Tenn. Code Ann. § 36-5-121(i) to the extent that those factors are implicated
by the evidence.”
Alimony factors courts are to consider are listed in Tenn. Code Ann. § 36-5-121(i) and
in short include: The relative earning capacity, obligations,
needs, and financial resources of each party, including income from pension, profit-sharing
or retirement plans and all 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; Marital property division;
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 (who is more to blame) of the parties in cases where the court, in
its discretion, deems it appropriate to do so; and such other factors, including the
tax consequences to each party, as are necessary to consider the equities between the parties.
So basically, everything. Appellate courts often say that need and ability to pay are
the two most basic and important factors. And, even though fault is a factor of the
original award, some courts will look to modify the award only upon changes in financial condition,
discounting fault some.
Every case is different. The language used in settlements and court orders awarding alimony
are all different. How those specific provisions read can make all the difference.
To speak with us about a consultation about alimony modification, please review our consultation
and fees page on our web site, MemphisDivorce.com.
Thank you.