Facts: Husband and Wife were married for approximately 37 years.

Husband is a dentist practicing in both Tennessee and Indiana. Wife worked in Husband’s dental office for much of the marriage, but she was working as a legal secretary at the time of divorce.

After dividing the marital property, the trial court ordered Husband to pay Wife $6000 per month for 10 years as alimony in solido, explaining:

The Court has considered that Husband’s earning capacity is greater than Wife’s. He will still have a thriving dental practice while her employment will still be limited to a legal secretary. Husband can still remain in his profession; Wife cannot. The marriage was of long duration and both parties are approaching 60. . . . Until [Husband’s] of adulterous affair, the parties maintained a comfortable living condition, although it might have been beyond their means. Both parties contributed equally to the acquisition of the [marital] estate. The fault in the marriage is entirely with Husband. The Court has reviewed the financial records of Husband, including his [tax] returns. The most important factor to be considered is [Husband’s] ability to pay support. The Court finds that [Husband’s] income ranges from $120,000 to $150,000, which means he has the ability to pay.

Husband appealed.

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

Tennessee Code Annotated § 36-5-121(i) requires trial courts to consider several factors when determining whether alimony is appropriate and in determining the nature, amount, duration, and manner of payment. It is well-settled that the economically disadvantaged spouse’s need and the obligor spouse’s ability to pay are the two most important factors. The economically disadvantaged spouse’s need, however, is a threshold consideration.

While the trial court analyzed Husband’s ability to pay, it did not assess Wife’s need for alimony. The Court found this was error:

Although Husband’s ability to pay is an extremely important factor for the trial court to examine, is not the most important consideration in determining whether the trial court’s alimony award is appropriate. The trial court’s statement to the contrary is in error. As we have noted, Wife’s need should be the threshold consideration in determining whether alimony should be awarded and end shaping the type and amount of the award. Here, however, the trial court’s findings do not appear to give any consideration to this factor, especially as would inform its decision to award alimony in solido as opposed to other forms of support and to give Wife an effective award of $720,000. Given the absence of proper findings with regard to Wife’s needs, we find it appropriate to vacate the alimony award and remand the issue to the trial court for reconsideration in light of the factors presented in Tennessee Code Annotated § 36-5-121(i), including Wife’s needs.

Thus, the alimony award was vacated and remanded for reconsideration.

K.O.’s Comment: It is sometimes overlooked that that “economically disadvantaged spouse” is a term of art referring to a spouse who suffered “economic detriment” for the sake of the marriage or the family. It does not include a spouse who simply earns less than than other spouse when the lower-earning spouse did not subordinate his or her career to benefit the marriage or the family. See, e.g., McKee v. McKee.

Bewick v. Bewick (Tennessee Court of Appeals, Middle Section, February 13, 2017).

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