October 31, 2018
In
Civil Litigation
Modifying Alimony Awards in Memphis, TN
Modification of alimony depends first on the form of alimony awarded, and then on the specific facts applicable to each case. Three of the four types of alimony may be modified under certain circumstances: alimony in futuro, rehabilitative alimony, and transitional alimony. Alimony in solido cannot be modified under any circumstances, except by the agreement of the parties. Each of these types of alimony awards may be awarded during a divorce or legal separation and can be explained by the family lawyer Memphis, TN trusts.
Modifying Alimony in Futuro or Rehabilitative Alimony
Generally, both of these forms of alimony remain in the court’s control for the duration of the award and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circumstances. A change in circumstances is “substantial” when it significantly affects either the obligor’s ability to pay or the obligee’s need for support. A change in circumstances is “material” when the change occurs since the date the alimony was ordered, and the change was not contemplated by the parties at the time of the award of alimony. When determining whether a modification of an alimony award is justified, the court must give equal weight to the need of the recipient spouse and the ability of the obligor spouse to pay.
One basis for a modification of an award of alimony in futuro may be the obligee’s cohabitation with a third party. Specifically, T.C.A. § 36-5-121(f)(2)(B) provides a rebuttable presumption in all cases involving alimony in futuro, where the alimony recipient lives with a third person, either that:
(i) The third person is contributing to the support of the alimony recipient and the alimony recipient therefore does not need the
amount of support previously awarded, and the court therefore 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 therefore does not need the
amount of alimony previously awarded and the court therefore should suspend all or part of the alimony obligation of the former
spouse.
However, such presumption does not automatically terminate the obligation. Rather, it requires the obligee to show a continued need for the support. As it relates to rehabilitative alimony, the court may modify the award if the recipient spouse is not able to become rehabilitated, despite reasonable efforts to do so. The court may modify the rehabilitative award, where doing so may lead to rehabilitation, such as where the recipient is not able to complete an educational program in the time allowed, due to illness, but may be able to do so with additional rehabilitative alimony. On the other hand, if rehabilitation is not feasible, the court may also order in futuro support, instead.
Modifying Transitional Alimony
Transitional alimony shall be non-modifiable unless:
(A) The parties otherwise agree in an agreement incorporated into the initial decree of divorce or legal separation, or order of
protection;
(B) The court otherwise orders in the initial decree of divorce, legal separation or order of protection; or
(C) The alimony recipient lives with a third person, in which case 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.
T.C.A. § 36-5-121(g)(2). Once a substantial and material change in circumstances has been demonstrated, a court will take into consideration the alimony factors to determine what, if any, modification should be granted.
If you are in need of help with alimony issues, including enforcement or modification of alimony, or have other family law related questions, and need counsel to discuss family law issues, call or schedule a consultation with our family lawyer Memphis, TN attorneys at Patterson Bray today. Call our office at (901) 372-5003 to ask for a consultation!
Patterson Bray is pleased to announce that attorneys Chris Patterson, Lindsay Jones, Larry Bray, Austin Rainey, and Will Patterson were recently selected by their peers for inclusion in the 30th Edition of The Best Lawyers in America©. This is the third consecutive year that all of these attorneys have been recognized.
Chris Patterson was recognized for his high caliber of work in the practice areas of Commercial Litigation & Municipal Law.
Austin Rainey was recognized for his high caliber of work in the practice areas of Commercial Litigation & Personal Injury Litigation – Plaintiffs.
Will Patterson was recognized for his high caliber of work in the practice areas of Commercial Litigation & Personal Injury Litigation – Defendants.
