Transitional Alimony Changed to Permanent Alimony in Roane Co., TN Divorce: Berkshire v. Berkshire

Facts: Wife, 60, and Husband, 40, divorced after 14 years of marriage. At the time of their marriage, Wife had health problems, including a diagnosis of multiple sclerosis, that made it impossible for her to work outside the home.

The trial court awarded Wife the marital residence, valued at $130,000, and held her responsible for the balance of the mortgage, which was approximately $55,000. The trial court found Husband’s equity interest in the marital residence to be $75,000, and awarded Wife that entire amount as alimony in solido.

The division of marital property and debt resulted in a net award to Wife of $92,000 and to Husband a net award of negative $11,000.

Wife was ordered to refinance the mortgage on the marital residence out of the names of both parties and solely into her name.

The trial court found Wife is not capable of obtaining employment because of her age and health problems. Wife was awarded transitional alimony of $400 per month for four months, which would provide her an opportunity to apply for Social Security disability benefits and TennCare health insurance.

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

Tennessee recognizes four distinct types of spousal support: (1) alimony in futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony.

Alimony in futuro, a form of long-term support, is appropriate when the economically disadvantaged spouse cannot achieve self-sufficiency and economic rehabilitation is not feasible.

Alimony in solido, another form of long-term support, is typically awarded to adjust the distribution of the marital estate and, as such, is generally not modifiable and does not terminate upon death or remarriage.

Rehabilitative alimony is short-term support that enables a disadvantaged spouse to obtain education or training and become self-reliant following a divorce.

Where economic rehabilitation is unnecessary, transitional alimony may be awarded. Transitional alimony assists the disadvantaged spouse with the transition to the status of a single person. Rehabilitative alimony is designed to increase an economically disadvantaged spouse’s capacity for self-sufficiency, whereas transitional alimony is designed to aid a spouse who already possesses the capacity for self-sufficiency but needs financial assistance in adjusting to the economic consequences of establishing and maintaining a household without the benefit of the other spouse’s income. Consequently, transitional alimony has been described as a form of short-term “bridge-the-gap” support designed to smooth the transition of a spouse from married to single life.

After reviewing the record, the Court concluded:

In this case, the reality is simply this: Wife is the economically disadvantaged spouse; she cannot achieve self-sufficiency; and she cannot be rehabilitated. All of this is not in dispute…. Wife’s earning capacity is clearly zero…..

We hold that the evidence preponderates against the trial court’s award of four months of transitional alimony. Considering all of the pertinent statutory factors and the totality of the circumstances, we modify Wife’s award to an amount of $150 per week as alimony in futuro, payable until Wife dies or remarries. While Wife will likely be entitled to Social Security disability benefits and TennCare, nevertheless, she is clearly in need of additional support, and Husband has the ability to pay this amount without undue financial hardship.

Wife also challenged the trial court’s ruling that she refinance the mortgage on the marital residence solely into her name. The Court agreed, writing:

Finally, Wife argues that the trial court erred by ordering her “to refinance the mortgage in her own name and . . . hold [Husband] harmless therefrom.” In her brief, Wife asserts that “[i]t would be impossible for her to refinance this mortgage given the fact that no lender would loan money to someone in her current physical and financial position.” We modify this decree of the trial court to provide that Wife shall apply for, and make reasonable efforts leading to, the possible refinancing of the mortgage on the residential property in her sole name.

Accordingly, the trial court’s award of transitional alimony was converted to permanent alimony and the amount increased. Wife was also relieved of her obligation to refinance the mortgage on the marital residence; instead, she must only attempt to do so.

K.O.’s Comment: (1) The trial court found this 14-year marriage to be “a marriage of relatively short term.” In a footnote, the Court commented, “Given the current culture, this Court does not believe a 14-year marriage should be considered ‘relatively short-term.'” Really? Three years ago this same Court held a 17-year marriage is neither short nor long for purposes of the alimony analysis. See Garman v. Garman.

(2) The Court’s decision to reverse the trial court’s requirement that Wife refinance the mortgage on the marital residence — instead requiring only that she attempt to do so — is the first such holding in Tennessee of which I am aware and is inconsistent with the Court’s prior rulings in several cases, e.g., Dobbs v. Dobbs and Mobley v. Caffa-Mobley. Unfortunately, the Court offers little in the way of explanation. The entirety of its analysis is contained in the block quote above.

Berkshire v. Berkshire (Tennessee Court of Appeals, Eastern Section, December 1, 2014).

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

Posted by

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.

Leave a Comment