Permanent Alimony Affirmed: Smarsh v. Smarsh

Facts: The parties divorced after 34 years of marriage during which Wife had been a housewife and stay-at-home parent while Husband advanced his education and experience in the workforce. The trial court awarded permanent alimony to Wife of $500 per month, mostly because of the disparity in the education and experience Husband had gained during the marriage. Husband appealed.

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

Husband argued the award of alimony in futuro was error because the trial court impermissibly considered speculation about Husband’s future earning potential failed to consider whether Wife could be rehabilitated.

The Court reviewed the record and found alimony to be appropriate, noting as follows:

The husband has five advanced degrees and thirty years’ experience in the military, and obviously has a much greater earning capacity than the wife, as the Trial Court found. The wife only had a high school education and had worked very little during the marriage (and not at all since the mid-1990’s). She has no marketable skills to speak of, and starting a career in her fifties, she would be hard-pressed to find a job making more than minimum wage. The husband, on the other hand, has an impressive bio demonstrating his marketability, and despite his supposed unsuccessful efforts at finding a job, admitted that he expected to find one earning in excess of $100,000 per year. He also demonstrated great success at stock trading, boasting that in the year and a half the parties were separated, he had almost doubled the value of their stock accounts, earning approximately $300,000. All of this demonstrates the husband’s earning capacity.

The wife testified, however, that she was living at a much lower standard of living than the husband enjoyed or than the parties enjoyed while together, and that she had “cut her bills to what she could afford. . . .” She should not be penalized because she tried to cut her expenses and live within a budget.

Husband then argued that Wife failed to demonstrate she could not be rehabilitated, which finding has to be made before a trial court can make an award of permanent alimony.

Tennessee Code Annotated § 36-5-121(f)(1) provides that rehabilitation is not feasible where “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.”

As the Court found there was a huge disparity in the parties’ education and earning capacity and thus the wife was disadvantaged. There was no proof presented that the wife could be rehabilitated at her age, with her limited education, skill level, and work experience, and we agree with the Trial Court that rehabilitation was not feasible.

The trial court was then affirmed in all respects, including the amount of alimony.

Smarsh v. Smarsh (Tennessee Court of Appeals, Eastern Section, April 23, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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