Facts: Husband and Wife, the parents of adult children, divorced after 24 years of marriage.

Husband, 55, works as a manager at Federal Express, earning $282,000 a year.

Wife, 60, is licensed to practice law but only earned $12,000 a year on average. She also suffers from some mental health issues that affect her ability to work. Her earning capacity is $1000 a month.

The parties agreed that the marital residence would be sold, and Wife moved back into the home to facilitate the sale of the property.

In dividing the marital property 60% to Wife and 40% to Husband, the trial court awarded Wife 80% of the net proceeds from the sale of the marital residence and required her to pay the mortgage debt and homeowner’s insurance until the property was sold. Wife was granted the authority to hire a realtor and be entirely responsible for the sale of the home.

Husband was ordered to pay alimony in futuro of $5500 per month for four years, at which point it would be reduced to $3500 per month until ending six years later.

Wife’s attorney’s fees and litigation expenses totaled $290,000. Husband was ordered to pay alimony in solido of $65,000 for 24% of Wife’s attorney’s fees. He was ordered to pay this at the rate of $1000 per month plus the statutory interest rate of 6.5%. Husband could also prepay this amount at any time.

Both parties appealed.

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

Collectively, the parties raised ten issues on appeal. Only two are noteworthy. Wife complained that she had to pay the mortgage and homeowner’s insurance until the marital residence (in which she lived) was sold. Wife also complained the award of alimony in solido was only for 24% of her attorney’s fees.

Mortgage payments and homeowner’s insurance. Tennessee courts consider four factors when deciding how to equitably divide marital debt:

• the debt’s purpose;
• which party incurred the debt;
• which party benefited from incurring the debt; and
• which party can best repay the debt.

The Court found no error in the trial court’s decision to assign the mortgage payments and homeowner’s insurance to Wife until the marital residence was sold:

Here, factors one and three support the trial court’s decision to charge Wife with the marital residence expenses. Had the trial court ordered Husband to pay the expenses of the marital residence until such time as the residence is sold, Husband would be contributing additional equity into an asset, the majority of which would ultimately inure to Wife’s benefit (as she would receive 80% of the sales price). Furthermore, requiring Husband to pay the expenses of the marital residence would give Wife reason to delay the sale of same so as to accrue additional equity in the asset from Husband’s additional mortgage payments. This would not be equitable. [W]e conclude that the trial court did not abuse its discretion in charging Wife with the payment of the mortgage and insurance on the marital residence. [T]he trial court granted Wife autonomy in selling the marital residence. Specifically, the trial court held that she “shall choose a listing agent and be responsible for the sale of the home.” Wife need only achieve her goal of selling the property to relieve herself of the mortgage and insurance obligation.

Attorney’s fees as alimony in solido. An award of attorney’s fees in divorce cases is considered spousal support and generally characterized as alimony in solido. Such an award is based on the same factors that must be considered in the award of any other type of alimony.

Awards of attorney’s fees as alimony in solido are appropriate only when the spouse seeking them lacks sufficient funds to pay their own legal expenses or would have to deplete their resources to pay those expenses. Where one party has been awarded spousal support to provide them with a source of future income, they need not be required to pay their legal expenses by depleting assets that will provide for future income.

The Court found no error in the attorney’s fees award:

Wife’s mental health issues create a barrier to her ability to earn consistent income in the future. On the other hand, Husband’s earning potential is proven and stable. In short, Wife is economically disadvantaged compared to Husband. While Wife was awarded alimony in futuro, such award was meant to provide Wife with “a source of future income.” Although Wife received a larger share of marital property then Husband, she was also charged with a larger amount of marital debt than Husband. Wife should not be required to pay legal expenses by using assets that will provide for future income.

*     *     *     *     *

[T]he trial court found some of Wife’s attorney’s fees to be unnecessary and/or unreasonable. … Although Wife should not be required to deplete all of her resources in paying her attorney’s fees, Husband should not be required to pay the full measure of the fees on her behalf. Wife is not without resources. In view of the award of marital property and the ongoing spousal support, Wife will be able to service the debt on her attorney’s fees.

The Court affirmed the trial court’s judgment in its entirety.

Murdock v. Murdock (Tennessee Court of Appeals, Western Section, March 2, 2022).

If you found this helpful, please share it using the buttons below.