iandoli & edens, llc

Can I Retire?

            Can I retire?  This is a question most of us are going to ask at some point. Followed by:   When do I want to retire?  Where do I want to retire to?  Have I saved enough to do that?  What is my retirement income going to be?  Divorced couples have an extra question or two.  Such as:  Can I retire and still pay my alimony obligation?  Or, do I still have to pay my alimony obligation if I retire?  Or from the other side:  What happens if my ex retires and my alimony is reduced or terminated?  Divorce adds an extra layer of stress and questions to the whole retirement issue.

If you are paying alimony you can retire and have your alimony obligation reduced or terminated.  However, you might not be able to retire as early as you want to.  “Alimony may be modified or terminated upon the prospective or actual retirement of the obligor.”  N.J.S.A.22A:34-23(j) There is a rebuttable presumption that alimony shall terminate at the time the obligor spouse reaches full retirement age.  Currently, in order to be eligible for full social security benefits you have to be 66 years and 2 months for people born in 1955, with it gradually rising to 67 for those born in 1960 or later. So, if you are 65 and you want your alimony to terminate it will not happen automatically.

Even if you are 66 your alimony may not terminate because the presumption that it shall is rebuttable. That means that the receiving spouse can argue against termination based upon the facts of the case.  The factors the court considers in that instance are:

(a) The ages of the parties at the time of the application for retirement;

(b) The ages of the parties at the time of the marriage or civil union and their ages at the time of entry of the alimony award;

(c) The degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union;

(d) Whether the recipient has foregone or relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award;

(e) The duration or amount of alimony already paid;

(f) The health of the parties at the time of the retirement application;

(g) Assets of the parties at the time of the retirement application;

(h) Whether the recipient has reached full retirement age as defined in this section;

(i) Sources of income, both earned and unearned, of the parties;

(j) The ability of the recipient to have saved adequately for retirement; and

(k) Any other factors that the court may deem relevant. N.J.S.A.22A:34-23(j)(a-k)

After the court reviews the factors it may decide the presumption that the obligor spouse can retire has been overcome. At that point it will apply the alimony factors discussed in Week 1 of our Alimony 101 Series.  The court will then determine whether modification or termination of alimony is appropriate.

The court will also address changes or termination of alimony in cases where the obligor spouse has not yet retired; or is seeking to retire prior to obtaining full retirement age. This is typically a more challenging request.  However, there are circumstances that might make such a request completely reasonable and acheivable.

As with almost every aspect of alimony (and family law in general) all of the court’s analysis is fact specific. In connection with a request for a reduction or termination of alimony the moving party must file a current Case Information Statement as well as the Case Information Statement that was filed at the time of the entry of the original alimony award.  Once again the court reviews numerous factors to determine if the application is made in good faith.

If you wish to retire and are currently paying alimony consultation with a family law attorney is a smart move. The application which would need to be filed with the court is very detailed and fact specific.  Some of the facts that need to be referenced were your circumstances at the time of the divorce which could be 5, 10, 15 or more years ago.  If you have any questions regarding retirement and alimony and how it relates to your case we are available to discuss your concerns with you, please call our firm at 908-879-9499.