You can take anything you think you deserve
You can take all the records you said you’d never heard
I can’t bring myself to care anymore
I will avert my gaze as you walk out the door
Please don’t make me pay alimony
Please don’t make me pay alimony
Oh alimony, Oh alimony
~ From “Alimony” by The Hummingbirds ~
No doubt, the sad fellow in the song (yes, I am assuming the singer was the husband) felt that he just couldn’t afford to pay support to his ex-to-be. If you are getting divorced in Tennessee, does the ability to pay matter in an alimony determination? Can that factor result in lower alimony than what otherwise might be ordered by a court?
Two recent decisions by the Tennessee Court of Appeals are instructive about that issue.
Kelly v. Kelly (decided Aug. 6, 2013) involved an 18-year marriage The husband was a stockbroker who was earning about $100,000 a year at the time of trial, down from a previous high of $500,00 a year. The wife was working at a minimum wage job. Both parties were 44 years of age, and they had two teenage children. The trial court did not award lifetime alimony to the wife, but awarded her $5,000 a month in transitional alimony for 10 years.
The Court of Appeals modified the alimony award, reducing it to $5,000 per month for 4 years and then $3,000 a month for an additional 4 years. The Court took the following considerations into account:
When reviewing the alimony award in this case, certain major factors stand out. First, the proof is such that, at the time of trial in this case, Husband’s income was greatly reduced from its previous heights. Though Husband may well regain something akin to his previous significant earnings, this is not in the record before us. On the other side, Wife predominantly has not worked during the marriage, and as of trial had a low-paying job…. Wife has not been able to readily translate the skills from her education into significantly income producing work. Without question, the proof shows that Husband does have a much higher ‘relative earning capacity’ than Wife. … [But, ] we simply cannot ignore the evidence of the large reduction in Husband’s actual earnings. In addition, Wife, a healthy individual in her forties with a college education, is in a fair position to achieve self-reliance.
Hernandez v. Hernandez (decided Sept. 27, 2013) involved a 20-year marriage. The husband lost his $80,000 a year job when his company relocated, and was unemployed at the time of trial. The wife (age 54) had health problems and very limited earning capacity. The parties had a 16 year-old and a 19 year-old. The trial court ordered the husband to pay the wife $600 a month for 36 months in transitional alimony. On appeal, the husband challenged that award, and the wife argued that she should have been awarded long-term alimony (alimony “in futuro”).
The Court of Appeals reduced the alimony award to $50.00 a month, but changed it from transitional to in futuro. The Court wrote:
The issues in tis divorce case are whether the trial court correctly ordered husband to pay wife $600 per month in transitional alimony for 36 months…. At the time of trial, husband had been unemployed and actively seeking work for about one year. The trial court found that his income was zero…. The proof at trial establishes that many of the statutory factors supporting an award of alimony in futuro—including the need of the wife, duration of the marriage, i.e., 20 years, the parties’ relative earning capacities, wife’s contributions to the marriage as homemaker and parent, and wife’s health – were demonstrated. Husband’s current ability to pay, however, is quite limited because of his involuntary unemployment and zero income. Consequently, we modify the transitional alimony award to $50 per month, but designate it as alimony in futuro.
BOTTOM LINE: Tennessee courts will give serious consideration to a spouse’s ability to pay in making alimony determinations… and, yes, that factor can result in a lower award than might otherwise be expected.