Facts: The parties divorced after 40 years of marriage. Both were 64 years old at the time of trial.

Husband is a college graduate who is an executive in a company owned by his family, where he earns between $40,000 and $67,000 per year. He is healthy and has no present plan to retire.

Wife has a high-school education and has not worked outside the home in 38 years. She suffers from mental and physical ailments, including bipolar disorder, severe depression, and anxiety. She was hospitalized five times for mental health issues. The medical proof showed she is unable to work and will require medical care for the remainder of her life.

As often occurs in a marriage of long duration, the trial court equally divided the marital property.

Wife was determined to be the economically disadvantaged spouse who was incapable of rehabilitating her earning capacity. She will start receiving $2,165 per month in Social Security benefits at age 66, two years from the date of divorce.

Wife was awarded alimony in futuro of $1000 a month for two years, after which it will be reduced to $500 a month.

Wife appealed.

On Appeal: The Court of Appeals modified the trial court’s judgment.

Property division. After classifying the parties’ assets as either separate or marital, Tennessee courts must divide the marital property in an equitable manner. This does not require that the property be divided equally. Dividing a marital estate is not a mechanical process, but rather is guided by considering the factors in Tennessee Code Annotated § 36-4-121(c).

After reviewing the record, the Court found error in the trial court’s division of marital property:

Based on the trial court’s findings on the disparity between the parties’ respective physical and mental health, earning capacity, financial needs, and the value of their separate property, which findings are supported by the evidence, we conclude that the trial court misapplied the statutory requirements for division of the marital estate. Applying the relevant statutory factors to the facts of this case, we have concluded that an equal division of the marital estate is not equitable to Wife.

The Court modified the trial court’s judgment by increasing Wife’s portion of the marital property from 50% to 55%.

Alimony in futuro. When determining whether to award alimony, Tennessee courts are required to consider the factors set forth in Tennessee Code Annotated § 36-5-121(i). While a trial court should consider all the relevant factors under the circumstances, the two most important factors to consider are the disadvantaged spouse’s need and the obligor spouse’s ability to pay.

The Court determined the trial court’s alimony award was an abuse of discretion:

[A]s for the alimony award—that being $1,000 per month for two years and $500 per month thereafter—the trial court did not state the reasoning behind its decision to award these specific sums. . . .

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Having considered the facts of this case and the relevant legal principles, we conclude the amount of alimony in futuro is not within the range of reasonable alternatives, principally because Wife has a need that is greater than the support awarded and Husband has the ability to pay more. . . .

Accordingly, we remand with instructions for the trial court to award Wife alimony in futuro in the sum of $2,500 a month for two years, beginning with the entry of the divorce decree, which award shall be reduced to $1,000 per month at the conclusion of the two years and continue for the remainder of Wife’s life or until she remarries of Husband’s death, whichever occurs first.

Thus, the trial court’s judgment as to property division and alimony was modified to give Wife more of both.

K.O.’s Comment: Regarding property, the Court holds that a 50/50 division of marital property constitutes a “misapplication of the statutory factors” on these facts and, therefore, was an abuse of the trial court’s discretion, but a 55/45 division reflects the proper application of the statutory factors. Is a 5% difference an abuse of discretion? How much confidence can trial courts have in the Court’s statement in Neas v. Neas that, “When it comes to the division of a marital estate, we do not tweak or second-guess trial courts”?

Gant v. Gant (Tennessee Court of Appeals, Middle Section, January 31, 2017).

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