Posted by: koherston | February 28, 2011

Property Division and Alimony: Raper v. Raper

Facts: The parties, both 50 years old, were divorced after a 26-year marriage. Husband earned $35,000 annually while Wife earned $23,000. One month before the separation, Husband, in contemplation of divorce and knowing that Wife would take the marital residence upon divorce, took out a second mortgage on the marital residence to pay off various debts. The parties agreed to equally divide certain assets but could not agree on some of the more valuable ones. The trial court awarded 63.2% of the marital estate to Wife and 36.8% to Husband. The trial court also made a modest alimony award to Wife. Husband appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Property Division. Husband argued the trial court erred failing to divide the marital estate equally. The Court concluded:

The trial court began by considering that this was a lengthy marriage — a factor that, standing alone, might support a more equal division of the assets, as Husband suggests. Other factors including age, physical and mental health, and employability also weigh equally in favor of both parties. Neither did either party bring any notable assets to the marriage or have any significant separate property. The trial court found, however, that a consideration of wife’s financial need, Husband’s earning capacity, and both parties’ economic situation at the time of the divorce favored a disparate division of the parties’ property in favor of Wife. The evidence showed that Wife worked as she had throughout the marriage, but was operating at a deficit each month. Husband, on the other hand, earned nearly twice Wife’s monthly income, and admittedly was able to continue paying the mortgage and child support and have money remaining each month. Moreover, although neither party had sought different employment since their separation, Husband had a demonstrated capacity to earn a higher salary, while there was no evidence that Wife had an ability to improve her economic circumstances. . . .

The evidence showed that these parties lived a seemingly comfortable, relatively frugal lifestyle together for nearly three decades. The trial court found that Wife was entitled to a greater share of the nest egg the parties had built together based on her needs and the economic circumstance that she unfortunately experienced as a direct result of the divorce. . . .

In summary, the overall equities between the parties support a disproportionate award of the net marital estate to Wife. While many of the relevant factors do not favor one spouse over the other, a consideration of Wife’s need, Husband’s earning capacity, and both parties’ economic circumstances support a greater award to Wife.

Alimony. Husband argued the trial court erred in awarding Wife any alimony whatsoever. The trial court ruled as follows:

Husband will pay wife — since the house payment will be paid by the husband, she still has a need of approximately $450.00 a month as long as she’s receiving the child support payment also, so husband will pay her $450.00 per month as alimony in futuro. And after the child support ceases in ten months, the alimony in futuro will increase to $700.00 a month. There’s no reason . . . the wife[‘s] standard of living . . . should decrease in such a fashion after this divorce. Her bare bones affidavit of monthly income and expenses will change because she will need a new car with the one she has having such high mileage on it. She may have expenses that come up unexpectedly such as medical or things in the future. The parties had a standard of living that was not extravagant and I think that would be equitable because he has an ability to pay at least $1,470.00 a month at his current income level after child support, and having to share that with his wife would be the equitable thing to do for alimony.

The Court rejected Husband’s argument, stating:

It is apparent to us that the trial court further considered relevant the parties’ standard of living during the marriage and Husband’s marital fault in fashioning its alimony award — the court expressly acknowledged Husband’s relationship with the girlfriend that had led him to leave Wife and concluded that there was no reason, given Husband’s available income, that Wife’s standard of living should decrease as a result of the unexpected end of her marriage. As the trial court put it, after 26 years of marriage, Wife, “through no fault of her own,” was faced with the reality that she could not maintain her former standard of living on her own. For all these reasons, the trial court found that Wife was entitled to the assistance from Husband that he could afford to pay. The evidence does not preponderate against the trial court’s finding.

This case is of interest because it is rare to see such a lopsided division of property in a marriage of this length. This goes to show that it can happen in certain situations.

Raper v. Raper (Tennessee Court of Appeals, Eastern Section, Feb. 2, 2011).

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


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