Alimony Discussion & Frequently Asked Questions
Modifying alimony in futuro:
Alimony in futuro may be modified upon a showing of substantial and material change in circumstances. See T.C.A. § 36-5-121(f)(2)(A). According to Tennessee case law, a change in circumstance is “material” when it (1) occurred since the entry of the divorce decree ordering the payment of alimony, and (2) was not anticipated or within the contemplation of the parties at the time they entered into the property settlement agreement. A change is to be considered “substantial” if it significantly affects either the obligor’s ability to pay or the obligee’s need for support.
A substantial and material change is only the “first hurdle” for a party seeking an alimony modification. Modification is within the court’s discretion, and the party requesting the modification must also demonstrate that the modification is warranted. The analysis is factually driven and calls for a careful balancing of numerous factors. Typically, the two most important considerations in modifying a spousal support award are the financial ability of the obligor to provide for the support and the financial need of the party receiving the support. While the need of the disadvantaged spouse is often the single most important factor in an initial alimony award, this is not the case in the context of a modification of alimony. As opposed to an initial spousal support determination, the need of the receiving spouse cannot be the single-most dominant factor. Instead, the ability of the obligor to provide support must be given at least equal consideration.
Cohabitation as a basis for modifying alimony:
Cohabitation with a third party can be a basis for modification of alimony in futuro. Pursuant to T.C.A. §36-5-121(f)(2):
(B) In all cases where a person is receiving alimony in futuro and the alimony recipient lives with a third person, a rebuttable presumption is raised that: (i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or (ii) The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse.
Tennessee courts have ruled that the term “third person” for purposes of modification is not limited to romantic partners.
Once the presumption from the aforementioned statute arises, the burden of proof shifts to the alimony recipient to demonstrate a continuing need for the full amount of the alimony award despite the cohabitation. Alimony is not automatically terminated upon the recipient spouse cohabitating with a third person. One way that the alimony recipient spouses have rebutted the presumption is by showing a deficit of funds despite the third-party’s support or cohabitation.
It’s important to note that Tennessee case law addressing modification of transitional alimony because of cohabitation can be applicable when considering modification of alimony in futuro because the cohabitation statutes for both transitional and in futuro alimony contain identical language.
The issue of cohabitation with a third party is relevant to an initial alimony award, and that courts can consider evidence of cohabitation in such proceedings. With respect to alimony, a trial court’s final decree fixing alimony is res judicata as to all circumstances in existence at the time of the entry of said decree. A change is considered material if the change occurred since the original support decree’s entry.
Cohabitation with persons other than romantic partners can also raise the presumption found at T.C.A. 36-5-121(f)(2)(B); however, an obligor spouse cannot rely on Tenn. Code Ann. § 36-5-121(f)(2)(B) to terminate or suspend alimony payments if the alleged cohabitation ceased before the modification petition is tried. Tennessee courts have reasoned that the situation that exists at the time of trial must be considered in applying the statute because the statute uses the present tense and even if the presumptions of support and lack of need arise and are unrebutted, the court’s remedy is to suspend all or part of the alimony obligation, not terminate the alimony. The clear implication of this language is that if the situation justifying suspension ceases to exist, the alimony recipient may seek reinstatement or support from the former spouse.
Even if the party owing alimony establishes that the obligee party is cohabitating with a third party, outright termination of the obligee’s alimony might not be the proper remedy. Tennessee courts have frequently held that an alimony recipient has rebutted the presumption by demonstrating continuing need, despite living with a third person and either receiving support from, or providing support to, the third person.
Internal Citations Omitted.
T.C.A. § 36-5-121
Hickman v. Hickman, 2014 WL 786506
Himes v. Himes, No. M2019-01344-COA-R3-CV, (Tenn. Ct. App. Apr. 20, 2021
Cooley v. Cooley, 543 S.W.3d 674
Akers v. Powers, No. E2021-01028-COA-R3-CV
Bowman v. Bowman, 836 S.W.2d 563 (Tenn. Ct. App. 1991)
McCormick v. McCormick, No. W2019-00647-COA-R3-CV (Tenn. Ct. App. Mar. 4, 2020)
Strickland v. Strickland, 644 S.W.3d 620 (Tenn. Ct. App. 2021)
Howard v. Beasley, No. W2019-01972-COA-R3-CV (Tenn. Ct. App. Oct. 20, 2020)
Woodall v. Woodall, 2004 WL 2345814 (Tenn. Ct. App. Oct. 15, 2004)
Gregory v. Gregory, No. M2015- 01781-COA-R3-CV (Tenn. Ct. App. June 30, 2016)
Last Updated 11/9/22.