Cannot Modify or Terminate Alimony Based on “Prospective Retirement” 5 Years in Advance

Sep 26, 2016

In Mueller v. Mueller, a Family Part judge interpreted the term “prospective retirement” as it is used in the recently amended New Jersey alimony statute.  That law provides that a supporting spouse may seek to terminate or modify his or her support obligation based upon an actual or prospective retirement.

In Mueller, the husband was required to pay $300 per week in permanent alimony after he was divorced from his wife in 2006 after 20 years of marriage.  The settlement agreement did not address retirement or how retirement would affect spousal support.  In 2016, at age 57, the husband filed a post-judgment motion prospectively ordering that his alimony obligation terminate when he turns 62.  The husband said that he intends to retire at 62, when he will be entitled to full employment-related pension benefits.  The husband further asserted that if his spousal support obligation does not end at age 62, then he will not be able to retire because his pension will not be enough for his living expenses and his alimony payments to the wife.  The wife filed a cross-motion for an order denying the husband’s prospective termination of spousal support.

The judge concluded that, while the alimony amendments did not specify a time frame for obtaining an advanced ruling on a prospective retirement modification, “[t]he spirit of the amended statute [] inherently contemplates that the prospective retirement will take effect within reasonable proximity to the application itself, rather than several years in advance of same.”  As a result, the husband’s application to terminate his alimony obligation 5 years before his expected retirement date was “brought too far in advance for the court to undertake an objectively reasonable analysis.”  The judge reasoned that, in order to rule on prospective retirement, the supporting spouse must present “a specifically detailed, proposed plan for an actual retirement, as opposed to a non-specific, general desire to someday retire.”

The judge explained that the alimony amendment allowing a court to consider prospective retirement instead of actual retirement is designed to avoid putting the supporting spouse in a financial catch 22.  If the supporting spouse is thinking of retiring in the near future, that spouse will logically benefit from knowing ahead of time whether the existing alimony obligation will change post-retirement.  Obviously, if the supporting spouse retires and ends his or her primary income stream before knowing whether spousal support will be modified, that spouse could fall into difficult financial circumstances.  But without the ability to undertake a thorough evaluation of each spouse’s financial and other circumstances near the time of anticipated retirement, a motion like the one filed in Mueller “may essentially be nothing more than a motion to summarily change the terms of an alimony settlement agreement from permanent or open-ended alimony to limited duration alimony, without demonstrating any substantial change in circumstances or necessary grounds for modification. . . .”

If you have a spousal support issue, contact the skilled matrimonial attorneys at Sarno da Costa D’Aniello Maceri LLC.  Call us today at (973) 274-5200.