Facts: Husband, 61, and Wife, 59, divorced after 5 ½ years of marriage.
Each entered the marriage with a net worth over $1 million.
Going into the marriage, the parties discussed their plans to sell their Tennessee assets, move to Alabama, and retire.
Wife owned two Merle Norman franchises. She sold one before the wedding and sold the other during the marriage.
After the parties separated, Wife took a job in a doctor’s office earning $15 an hour. Husband retired.
The trial court found:
Wife testified she would never have sold her Merle Norman store but for her reliance upon Husband’s representation about their future [retirement]. The gross sales from her Merle Norman stores in 2007 and 2008 averaged approximately $400,000. Wife is now working for a doctor’s office earning $15 per hour.
After equitably dividing the marital property, the trial court awarded Wife alimony in solido of $85,000, and attorney’s fees of $10,775 as alimony in solido.
On Appeal: The Court of Appeals affirmed in part and reversed in part.
Alimony in solido. Husband argued that alimony in solido of $85,000 was inappropriate in such a short marriage and that Wife—a millionaire—showed no need for alimony. This did not persuade the Court:
[W]e conclude that the lump sum was appropriate even given the relatively short duration of the marriage. . . . [Because Wife sold her franchises in reliance on Husband’s representations about retirement,] Wife was “earning significantly less money.” At the time of trial, Wife was 59 with only a high school diploma. On the other hand, Husband, who possess a college degree, was 61 and recently retired at his own volition. He was living off his retirement and investments. The [trial] court found that Husband’s separate assets exceed the separate assets of Wife “by at least $140,000, if not more.” On appeal, Husband does not contest his ability to pay alimony. The [trial] court also took into consideration the parties’ standard of living during the marriage. The [trial] court found that the parties spent extravagantly during the marriage.
The award of $85,000 as alimony in solido was affirmed.
Attorney’s fees. An award of alimony to pay attorney’s fees is only appropriate when one spouse lacks enough funds to pay their legal expenses or would be forced to deplete their resources to pay them, and the other spouse has the ability to pay. Thus, a spouse with adequate property and income may not have an award of alimony to pay attorney’s fees and expenses.
The trial court’s award of attorney’s fees of $10,775 as alimony in solido did not withstand appellate scrutiny:
We conclude that the trial court erred in awarding Wife attorney’s fees. As the [trial] court found, Wife owned separate assets in excess of $1 million. And she presented no evidence that she lacks funds to pay her own legal expenses.
The award of attorney’s fees was reversed.
K.O.’s Comment: The trial court referred to this as a seven-year marriage. Husband argued the parties were only together in marriage for 5 ½ years, i.e., from marriage to separation.
One may measure the duration of the marriage from the date of marriage to either the date of divorce or the date of separation. When determining which measurement one should use, the Court says, “The circumstances behind separations and the nature of the parties’ relationship dictate the appropriate measure.”
That’s not helpful guidance to lawyers or judges.
Here, it would have made no difference. By either measure—5 ½ years or seven years—this is a marriage of short duration for the alimony analysis.