Alimony – also known as “spousal support” – is monetary support and maintenance paid by one spouse to assist the economically disadvantaged other spouse during or after divorce. The amount of alimony can vary by type, amount, and duration depending upon the unique facts of your case.
There are four types of alimony recognized under Tennessee law: alimony in solido, alimony in futuro (also called Periodic Alimony), rehabilitative alimony, and transitional alimony.
Mississippi also recognizes four different types of alimony: permanent alimony, lump sum alimony, rehabilitative alimony, and reimbursement alimony.
In both Tennessee and Mississippi, there is a statute setting forth factors that a court must consider in evaluating the issue of alimony. However, judges have discretion in how to apply those factors in each individual case based upon the facts and the financial circumstances of the parties.
Tennessee’s main alimony statute is found at Tennessee Code Annotated §36-5-121. There are multiple statutory factors that the Court must analyze in setting the type, amount, and duration of alimony in Tennessee:
(1) 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;
(2) 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 earnings capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
(6) 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;
(7) The separate assets of each party, both real and personal, tangible and intangible;
(8) The provisions made with regard to the marital property, as defined in § 36-4-121;
(9) The standard of living of the parties established during the marriage;
(10) 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;
(11) The relative fault of the parties, in cases where the court, in its discretion, deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
In Mississippi, the case of Armstrong v. Armstrong established what the Court is to consider in awarding Permanent, Lump Sum, and Rehabilitative Alimony to include:
- The parties’ income and expenses;
- The parties’ health and earning capacities;
- The needs of each party;
- The obligations and assets of each party;
- The length of the marriage;
- The presence or absence of minor children in the home and the need for childcare;
- The parties’ ages
- The parties’ standard of living during the marriage and at the time the support is determined;
- Tax consequences of the spousal support order;
(10) Fault or misconduct;
(11) Dissipation of assets by either party; or
(12) Any other factor deemed to be “just and equitable”
In Mississippi, reimbursement alimony may be awarded to a spouse who supported the other spouse through school and whose contribution cannot be recognized through property division. The Court has not provided a list of explicit factors, but the test appears to require (1) a spouse’s support of the other through school (2) the expectation of increased earnings and (3) a divorce that occurs shortly after schooling and before financial return on the education is realized.
Depending on the type of alimony awarded, it may or may not be able to be modified in the future. Additionally, depending on the type of alimony awarded, the alimony may or may not terminate upon the Payor’s death and may or may not terminate upon the Payee’s death or remarriage.
Although fault is one of the factors in the alimony equation, it is not the primary one. The primary factors that the court will emphasize in fashioning an award of alimony are the needs of the economically disadvantaged spouse and the paying spouse’s ability to pay from his or her income and/or assets. The disadvantaged spouse has an obligation to support himself or herself consistent with his or her education, training, experience, and skills, also known as an “earning capacity.”
There may be a need for interim support orders for a child or for a spouse or for both while the divorce action is pending. In that event, temporary alimony, or alimony pendente lite, also known as temporary support or temporary maintenance, may be ordered while the case is pending. When the final judgment of divorce is entered, whether a final award of alimony is ordered or not, the temporary alimony order will terminate.
Alimony is not awarded in every divorce case. Whether or not you are a potential candidate to pay or to receive temporary or more permanent types of alimony is a discussion you should have in your initial divorce consultation with your attorney.
If you have concerns, questions, or would like to learn more about the alimony laws in your state, please call Berry, Cannon, Crawford & Macaw PLC for more information.