What is Alimony Modification?
Litigants divorced before September 2014 continue to face challenges in seeking to modify and/or terminate their permanent alimony obligations upon retirement, or other substantial changes in their financial circumstances. With the legislation enacted by the New Jersey Legislature in September 2014, so-called “permanent” alimony is no longer available, and marriages exceeding 20 years in duration can now yield what is called “open durational alimony.”
The statute that now controls potential modification of pre-September 2014 alimony agreements is N.J.S.A. 2A:34-23(j)(3), which refers to such situations as “cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date [September 10, 2014] of this act.”
Retirement and Permanent Alimony
The majority of applications seeking to terminate alimony for pre-September 2014 agreements are due to the upcoming retirement of litigants who are paying permanent alimony. Before the revisions to N.J.S.A. 2A:34-23, the vague general principle of “changed circumstances” controlled the adjudication of such applications. While retirement was certainly a changed circumstance, there was no clarification as to what constituted retirement sufficient to terminate alimony.
The Criteria for Retirement and Alimony
Few published cases address the criteria for retirement and alimony modification and/or termination for pre-September 2014 agreements, but they are instructive. For example, in Mueller, the Ocean County Family Part confirmed that “good-faith retirement age” is the age at which a person is eligible to receive full Social Security retirement benefits under Section 216 of the Federal Social Security Act.
Even if the standard retirement age in a given profession is before an individual reaches Social Security retirement age, that litigant will have difficulty terminating alimony based on his/her retirement. The Mueller decision makes clear that to have a stronger case for alimony termination, litigants who have reached Social Security retirement age have a more persuasive argument.
How Does Retirement Affect the Alimony Recipient?
In another published case, the Appellate Division focused on an element of the revised statute that had not previously been discussed, specifically the ability of the recipient of permanent alimony to have saved adequately for the potential retirement of the payor spouse. For example, if a payor spouse has reached Social Security retirement age, and that age is the common retirement age in his/her profession, the recipient spouse’s failure to properly prepare for the payor spouse’s retirement will not be an obstacle to a termination application. Even if the recipient spouse is in poor financial condition due to his/her own bad spending habits, or failure to save money over the course of the duration of alimony payments, that will not prevent the trial court from terminating the payor spouse’s alimony payments.
Alimony and Laws Will Continue to Change
There are not a plethora of published decisions addressing this developing issue, but any litigant looking to terminate or modify alimony or spousal support should seek counsel from an experienced attorney who has dealt with similar cases. All such cases are fact-sensitive, but an experienced lawyer at our firm will guide you in the right direction.
Reach out to Siegel Law today for more information on retirement and paying or receiving alimony.
