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When the governor signed the new alimony law in September 2014, many people believed that it created an automatic termination of alimony obligations when the paying spouse reached full retirement age. But that’s not the case. The law provides different standards with regard to retirement age and how it effects alimony based on when your agreement was signed.
Agreements signed prior to September 10, 2014:
For marital settlement agreements signed prior to September 10, 2014, when you reach full retirement age (age 67 for those born in 1960 or later) you can try to modify or terminate alimony but the court will require you to satisfy the following factors:
(1) age and health of the parties at the time of the application;
(2) payor’s field of employment and generally accepted age of retirement for those in that field;
(3) age that payor becomes eligible for retirement, including mandatory retirement date or dates upon which employment would no longer increase retirement benefits;
(4) payor’s motives in retiring, including pressures by employer or incentive plans offered;
(5) reasonable expectations of the parties for retirement during the marriage/civil union or at the time of the alimony award;
(6) ability of payor to maintain support payments after retirement, and the likelihood that part or fulltime work will be sought;
(7) recipient’s level of financial independence and the financial impact of payor’s retirement upon recipient;
(8) recipient’s ability to have saved adequately for retirement;
(9) any other relevant fact affecting the payor’s decision and the parties’ financial positions.
Agreements signed after September 10, 2014:
For agreements that were signed after September 10, 2014, when you reach full retirement age, you are entitled to an automatic presumption that alimony should end and the burden then shifts to the spouse receiving alimony to show why alimony should continue. To determine whether the receiving spouse has overcome this presumption the court will review these factors:
(1) The ages of the parties at the time of the application for retirement;
(2) the ages of the parties at the time of the marriage/civil union and at the time of the alimony award;
(3) the degree and duration of the economic dependency of the recipient upon the payor during the marriage/civil union;
(4) whether the recipient bargained away rights in exchange for a higher amount or longer term of alimony;
(5) the duration of alimony already paid;
(6) the health of the parties at the time of the application; (6) the assets of the parties at the time of the application;
(7) whether the recipient has attained full retirement age;
(8) all income, both earned and unearned, of the parties;
(9) the ability of the recipient to have saved adequately for retirement; and,
(10) any other factors the court may deem relevant.
Tips for when you are approaching retirement:
There are two important tips to remember when you are approaching retirement- first, do not stop paying alimony until the court has ruled on your application. Second, while you can make the application to terminate alimony prior to your actual retirement, the timing of the motion must be reasonably close in time to your planned retirement. This issue was recently addressed in a court case where the paying party filed an application seeking to terminate alimony upon his retirement 5 years in the future. The court denied his request stating that a court needs to review “reasonably current information relative to the time period of the proposed retirement itself” in order to properly evaluate the factors outlined above. Muller v. Mueller, FM-15-619-05 (Ch. Div. April 22, 2016). In that case, the court suggested that it would be more appropriate for the spouse paying support to have made the application 12-18 months before his prospective retirement, rather than 5 years in advance.
At DeTorres & DeGeorge, we have extensive experience in representing clients who wish to terminate their alimony obligation based on their retirement, as well as defending these applications. Call us today at (908) 284-6005.
