Alimony in futuro, sometimes called periodic alimony, is regular installments paid to a former spouse until the former spouse dies or remarries. The divorce court retains the authority to modify the payments if there is a substantial and material change of circumstances for either party.
Wilhoit v. Wilhoit, 2018 WL 934582 (Tenn. Ct. App., Feb. 16, 2018), is a case that illustrates the analysis a court goes through when considering a petition to modify or terminate an award of alimony in futuro. The parties in Wilhoit had been married 42 years. Husband was ordered to pay $4,500 per month in alimony in futuro. Just over a year after the divorce, and after suffering a debilitating heart attack, Husband petitioned the court to terminate his alimony obligation because he was no longer able to earn income. Husband’s only income was Social Security which was not enough to meet his personal expenses. Wife was in the same boat with monthly expenses that exceeded her Social Security income by roughly four times. She had been heavily dependent on the alimony to make ends meet.
The trial court found Husband’s decision to retire was reasonable given his health problems and concluded there had been a “substantial and material change” in circumstances justifying a modification of the original award. However, it only reduced Husband’s monthly obligation to $2,990 per month, reasoning that Husband had more assets than Wife that could be liquidated to make up for any shortfall. Husband appealed to the Court of Appeals.
The appellate court stated the factors to consider in whether to modify an alimony award, after a substantial and material change has occurred, are the same factors used when looking to award alimony in the first place. Those factors are found in the Tennessee Code at § 36-5-121(i). The two most important factors are need and ability to pay. The court stated these factors must be given equal consideration in a modification proceeding.
The Court then took a closer look at both parties’ income and expenses. Particular attention was paid to the fact Wife was living with her mother, which suggested she did not need alimony or as much alimony. The Court also determined, if Husband continued to pay at the rate ordered by the trial court, all his assets would be gone within about 3 years. Thus, the Court of Appeals held the amount awarded by the trial court was an abuse of discretion and lowered the obligation to $500 per month. In doing so, the Court pointed out an alimony recipient has no right to maintain a pre-divorce lifestyle if the alimony obligor can no longer afford it.