Divorcing TN Spouses Can Agree to “Hybrid” Forms of Alimony
Divorcing TN Spouses Can Agree to “Hybrid” Forms of Alimony
Tennessee alimony modification case summary.
Estate of Donna McCullough v. Anthony McCullough
The husband and wife in this Hardin County, Tennessee, case were divorced in 2018 after executing a marital dissolution agreement. The agreement called for the husband to pay $4521 per month alimony. A few months later, the husband went to court to set aside the divorce decree. He argued that the alimony provision was void. The trial court denied the motion, and the husband appealed to the Tennessee Court of Appeals. While the appeal was pending, the wife died, and her estate was substituted as a party.
Prior to the divorce, the parties met with an attorney, who later testified that they had agreed to most provisions. The attorney advised them that he could not represent both spouses, so the husband and wife agreed that the attorney would represent the wife.
The attorney drafted the paperwork, and the parties returned to his office. The husband did not have an attorney. The agreement specified that the alimony was to be alimony in solido, but that unlike the normal practice, the requirement to pay it would terminate upon death.
The husband argued that the alimony was invalid because it formed this type of hybrid alimony. He also argued that he was not afforded an opportunity to meet with a lawyer before signing, although the lawyer testified that the husband was told he could take the documents home, and not sign them immediately.
On appeal, the husband argued that the judgment was void, because of the alimony provisions. But the appeals court pointed out that the husband had cited no precedent holding that a hybrid form of alimony would render a judgment void. It further pointed out that there was nothing illegal or inimical to public policy for allowing such a provision. The court cited numerous prior decisions holding that the parties could agree to some form of relief that is not otherwise allowed by state law.
The appeals court also examined the evidence and concluded that the husband had been afforded the right to have his own attorney review the agreement before signing.
The appeals court also affirmed the award of attorney’s fees, and also awarded the wife’s estate attorney’s fees for the appeal. For these reasons, the Court of Appeals affirmed the lower court and remanded the case.
No. W2020–01723-COA-R3-CV (Tenn. Ct. App. May 19, 2022).
See original opinion for exact language. Legal citations omitted.
To learn more, see Alimony Modification in Tennessee Law | How to Modify Alimony and our video, How is alimony decided in Tennessee?
