Facts: Husband, a dentist, and Wife, a nurse, divorced after 12 years of marriage. While the divorce was pending, Husband was ordered to pay temporary alimony of $2000 per month. After a trial, the court divided the marital estate and awarded Wife alimony in futuro of $1100 per month. Wife appealed.

On Appeal: The Court of Appeals vacated and remanded the trial court’s judgment.

Property Classification and Valuation. Wife argued the trial court erred by failing to make a determination as to what constituted marital property and separate property.

The division of the marital estate begins with the classification of property as separate or marital. Tennessee’s divorce statutes draw a distinction between marital and separate property, and because Tennessee Code Annotated § 36-4-121(a) provides that a court may only divide marital property, proper classification of a couple’s property is essential. It is also necessary for a trial court to classify the property because the value of a party’s separate property is a factor to be considered in making an equitable division of marital property. Accordingly, it is incumbent on the trial court to classify the property and to give each party their separate property before dividing the marital estate.

Wife argued that certain property awarded by the court was her separate property owned by her before the marriage. The Court acknowledged this evidence and said:

The testimony also indicates that most or all of the remaining real and personal property was purchased during the marriage and, presumably, would be considered marital assets. However, the trial court did not classify any of the property as marital or separate, and it is not the purview of this Court to make those findings. Classification of property is a threshold determination that must be made before property is divided, and because separate property would not be considered part of the marital estate subject to equitable division, the court erred in failing to classify the property. Consequently, we remand the case for the trial court to classify the parties’ property and debt as either marital or separate and to modify the division of marital property if necessary.

Alimony. Wife also said the trial court erred by failing to award the full amount of permanent alimony she requested. Husband took the position that wife was not entitled to any alimony at all.

The statutory framework for spousal support reflects a legislative preference for short-term spousal support over long-term spousal support, with the aim being to rehabilitate a spouse who is economically disadvantaged relative to the other spouse and to achieve self-sufficiency where possible. In the Gonsewski case, the Tennessee Supreme Court stated that “there is a statutory bias toward awarding transitional or rehabilitative alimony over alimony in solido or in futuro,” and held that “alimony in futuro should be awarded only when the court finds that economic rehabilitation is not feasible and long-term support is necessary.”

After reviewing the record, the Court stated:

We are unable to affirm the nature or amount of alimony awarded by the trial court. The trial court did not find that economic rehabilitation was not feasible or that long-term support was necessary, as required by Gonsewski. Further, trial courts are directed to consider the parties’ separate property and the provisions made with regard to the marital property when determining whether alimony is appropriate.

Because the trial court did not classify the property before dividing it and did not make the findings required by Gonsewski, we are unable to conclude that the trial court’s award of alimony in futuro to Wife was appropriate. Although we affirm the court’s finding that an award of alimony was appropriate, we vacate the award of alimony in futuro and remand for the trial court to reconsider the nature and amount of alimony to be awarded to Wife. In determining the nature and amount of alimony, the court is directed to give consideration to the factors listed at Tennessee Code Annotated § 36-5-121(i) and the statutory preference for short-term alimony as articulated by our Supreme Court in Gonsewski.

Green v. Green (Tennessee Court of Appeals, Middle Section, June 25, 2012).

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