The Divorce That Wouldn’t Die

This is the dreary case of Mr. and Mrs. Smith, doomed to rehash (seemingly) forever the tawdry issues of their divorce. You can read all about it, but probably won’t want to, at Smith v. Smith, Case No. 2031182 (Ala. Civ. App. October 28, 2005). If you’re into such things, I’ll let you revel in the minutia, involving four trips to the trial court (with another yet to come) and three trips to the court of appeals. For these purposes, I’ll simply summarize the key principles.

When it comes to retirement plans, the trial court doesn’t have discretion to transfer any part of them unless the parties have been married for 10 years, and the 10 years is measured from the date of marriage until the date on which the divorce complaint is filed (not the date of the final judgment of divorce).

If the trial court orders a transfer of retirement plan wealth (which actually occurs), and if that transfer is later reversed on appeal, and if the assets transferred have lost value in the meantime, the person who received the transfer is not required to restore the original value of the assets, only the value of the assets as it exists at the time of the return to the original owner.

When a trial court awards periodic alimony and that alimony is reversed on appeal, the trial court must order the recipient to return that alimony unless the recipient demonstrates that restitution is inequitable.

Now if you want to go read the opinion, knock yourself out. And then send Mr. and Mrs. Smith a “Move On With Your Life” card.