Mills v. Mills

September 20, 2010 K.O. Herston 0 Comments

Facts: In this nearly 12-year marriage, Wife received $87,387 (60.4%) of the marital estate compared to Husband’s $57,299 (39.6%).  Wife was 40 years old and had a G.E.D.  She was considered totally disabled such that she received Social Security disability, although the nature of her claimed disability was rather unclear.  Finding that Wife was able to obtain employment and that Husband’s standard of living was “marginal,” the trial court awarded Wife transitional alimony of $800/month for 12 months.  Wife appealed, arguing the trial court erred by failing to award her alimony in futuro (a.k.a. periodic alimony) of at least $1,578/month.

The Court of Appeals affirmed the trial court.

Alimony in futuro is defined as:

[A] payment of support and maintenance on a long term basis or until death or remarriage of the recipient. Such alimony may be awarded when the court finds that there is relative economic disadvantage and that rehabilitation is not feasible, meaning that the disadvantaged spouse is unable to achieve, with reasonable effort, an earning capacity that will permit the spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.

Tenn. Code Ann. § 36-5-121(f)(1).  On the other hand, transitional alimony “is awarded when the court finds that rehabilitation is not necessary, but that the economically disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce.”  Tenn. Code Ann. § 36-51-21(g)(1).  The purpose of transitional alimony is to aid the person in the transition to the status of a single person.

The record is devoid of any assertion by Wife that she cannot be rehabilitated, a finding required for an award of alimony in futuro. Moreover, other than the vague statement that Wife cannot work for “some reason,” the record is devoid of any evidence as to Wife’s disability or the reason for her inability to work. Also, Wife testified at trial as her ability to regularly go out to bars, and admitted being arrested several times in the past for domestic assault and for getting into physical altercations at bars. This testimony negates her vague assertion of physical disability. Further, the trial court made a determination on Wife’s credibility, finding her to be not credible and to be evasive. Wife has not provided this Court with, nor did we find in our review of the record, clear and convincing evidence to contradict the trial court’s credibility findings.

Mills v. Mills (Tenn. Ct. App. Aug. 4, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.

Mills v. Mills was last modified: June 28th, 2011 by K.O. Herston

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