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DIVORCE – Property distribution and alimony

CarleeMcCullough-160Remember the popular song lyrics of Johnnie Taylor – "Cheaper to Keep Her?"

Well, there just may be some truth to those words.

The after effects of a divorce can wreak havoc on a business. Taking into consideration loss of property and the payment of alimony, the consequences can be long lasting and difficult to overcome.

Property distribution

Tennessee is an equitable distribution state that divides the marital property equitably without regard to fault. Marital property is defined as all property acquired during the marriage, regardless of whose name is on the title. Property acquired prior to the marriage or after a legal separation, inheritances and gifts, and pain and suffering awards are considered separate property.

According to the Tennessee Code, the following factors are considered by the court when determining an equitable distribution of the marital property:

• The length of the marriage;

• The age, physical and mental health, employability, and financial needs of each spouse;

• The contribution of one spouse to the education or increased earning power of the other spouse;

• The relative ability of each spouse for future employment and asset acquirement;

• Contributions as a homemaker, wage earner, or parent;

• The value of the separate property of each spouse;

• The economic circumstances of each spouse at the time of the divorce;

• The tax consequences of the proposed property settlement;

• The social security benefits available to each spouse; and

• Any other factors relevant to an equitable distribution settlement.

The court may award the family home and effects, or the right to live there for a reasonable period of time, to either party, but shall give special consideration to the spouse having physical custody of a child or children of the marriage.

Alimony

When most people think of alimony or spousal support, they think of a man paying a woman. However, with the rise of stay-at-home fathers and the growing achievements of women in their respective professions, more women are beginning to pay men alimony or spousal support.

In Tennessee, the court may award support when it finds that one party is economically disadvantaged relative to the other spouse. The court may award rehabilitative alimony, periodic alimony, transitional alimony, or lump sum alimony, or a combination of these, taking the following factors into consideration:

• The relative earning capacity, obligations, needs, and financial resources of each party;

• The relative earning capability of each party, and the necessity of a party to secure further education and training to improve such party's earnings capacity to a reasonable level;

• The duration of the marriage;

• The age, mental, and physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;

• Whether the custodial parent is unable to work outside the home due to the care of a minor child;

• The separate assets of each party;

• The property apportioned to the party;

• The standard of living established during the marriage;

• The contributions as a homemaker and to the education, training or increased earning power of the other party;

• The relative fault of the parties;

• Any other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Types of Alimony

Rehabilitative Alimony is designed to help the lesser earning spouse revive or increase his or her earning potential in an effort to maintain the lifestyle of living he or she has grown accustomed to living. This can be achieved through support payments for some period of time. This form of alimony can be increased, decreased, extended, or terminated by the court depending on the situation. But rehabilitative alimony will also terminate at the death of either party, unless otherwise ordered by the court.

Alimony in Futuro can be awarded in addition to rehabilitative alimony and paid in a different amount and length of time. This type can also be modified by a court if the situation requires and will terminate "automatically and unconditionally" at the death or remarriage of the person receiving payments. The payments will also terminate at the death of the payer unless the court orders differently.

Transitional Alimony can be awarded in addition to rehabilitative alimony and paid in a different amount and length of time. If the court finds that rehabilitative alimony is not enough to achieve a comparable lifestyle, then the court may attempt to equalize the income of the former spouses by ordering transitional alimony for whatever period of time the court deems appropriate. This type can be modified by the court if the situation requires and will terminate "automatically and unconditionally" at the death or remarriage of the person receiving payments. The payments will also terminate at the death of the payer, unless the court orders differently.

Lump Sum Alimony or Alimony in Solido, according to the Tennessee Code is a form of long term support, the total amount of which is calculable on the date the final decree is entered, but which is not designated as transitional alimony. It may be paid in installments; provided, that the payments are ordered over a definite period of time and the sum of the alimony to be paid is ascertainable when awarded. The purpose of this form of alimony is to provide financial support to a spouse. In addition, alimony in solido may include attorney fees, where appropriate. The payments don't terminate on the death or remarriage of either party. Theoretically, one deceased person's estate could owe alimony to another deceased person.

So decide for yourself is it "Cheaper to Keep Her"?

(Contact Carlee McCullough, Esq., at 5308 Cottonwood Road, Suite 1A, Memphis, TN 38118, or email her at This email address is being protected from spambots. You need JavaScript enabled to view it. .)

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