NJSBA Family Law Section

Hopefully some of you can help me with a couple of questions:



Did the new alimony statute change the law on evaluating retirement, based
on additional earnings post-retirement?



Is the law today that someone who continues to make a living post "normal
retirement age" should be deemed not retired?



Thanks in advance for all responses.



Misty






Misty Velasques, Esq.

t 609.683.7400 f 609.921.8982
e [email protected] w www.hananisaacs.com
4499 Route 27, Kingston NJ


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Misty -
<x-tab>        </x-tab>There's no case law on this exact issue; the new statute is too new.  The only case I'm aware of that addresses changes based on the alimony reform addresses cohabitation .  The statute (which I'm sure you already have) is below -- if the payor is continuing to work post-retirement, I think you'd have a strong argument that alimony should continue (perhaps being modified?) under section (i).
<x-tab>        </x-tab>When the reforms (or, "Alimony Reform, Round 1" as I like to call it) were being debated and discussed, there was considerable discussion about this issue and the effect of a payor continuing to work after "retirement age" (67 1/2 for just about everyone at this point)  What if the parities have a very long-term marriage and divorced within a couple of years of the payor attaining "full retirement age"?  What if the parties are over the retirement age when they divorce; can alimony still be ordered?  The factors were drafted with these (and other) questions in mind, but until there's case law (go out and make some!), I think you'd have to argue from a legislative history / intent perspective and what's equitable based on your facts.

------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
http://www.FamilyLawNJ.pro
------------------------------


     �Full retirement age� shall mean the age at which a person is eligible to receive full retirement for full retirement benefits under section 216 of the federal Social Security Act (42 U.S.C. s.416).

     j.     Alimony may be modified or terminated upon the prospective or actual retirement of the obligor.

     (1)   There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age, except that any arrearages that have accrued prior to the termination date shall not be vacated or annulled. The court may set a different alimony termination date for good cause shown based on specific written findings of fact and conclusions of  law.

     The rebuttable presumption may be overcome if, upon consideration of the following factors and for good cause shown, the court determines that alimony should continue:

     (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.

     If the court determines, for good cause shown based on specific written findings of fact and conclusions of law, that the presumption has been overcome, then the court shall apply the alimony factors as set forth in subsection b. of this section to the parties' current circumstances in order to determine whether modification or termination of alimony is appropriate. If the obligor intends to retire but has not yet retired, the court shall establish the conditions under which the modification or termination of alimony will be effective.

David,



Very helpful analysis, and consistent with our thoughts.



We have a client who is well above normal retirement age as defined. He is working full time, as he has been since the divorce many years ago. I told him about the new statute and said "When you are ready . . . "



He said, "I plan to work another 35 years." This is a joke, of course (he would be over 100 then), but he asked what happens if he declares retirement yet continues to work, making less than he did years ago, and less than he does today.



My thinking is, the new statute does not modify the old analysis; it just provides sharper tools when the retiree "really" retires.



Thanks again.



Hanan


Original Message------

Misty -
<x-tab>        </x-tab>There's no case law on this exact issue; the new statute is too new.  The only case I'm aware of that addresses changes based on the alimony reform addresses cohabitation .  The statute (which I'm sure you already have) is below -- if the payor is continuing to work post-retirement, I think you'd have a strong argument that alimony should continue (perhaps being modified?) under section (i).
<x-tab>        </x-tab>When the reforms (or, "Alimony Reform, Round 1" as I like to call it) were being debated and discussed, there was considerable discussion about this issue and the effect of a payor continuing to work after "retirement age" (67 1/2 for just about everyone at this point)  What if the parities have a very long-term marriage and divorced within a couple of years of the payor attaining "full retirement age"?  What if the parties are over the retirement age when they divorce; can alimony still be ordered?  The factors were drafted with these (and other) questions in mind, but until there's case law (go out and make some!), I think you'd have to argue from a legislative history / intent perspective and what's equitable based on your facts.

------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
http://www.FamilyLawNJ.pro
------------------------------


     �Full retirement age� shall mean the age at which a person is eligible to receive full retirement for full retirement benefits under section 216 of the federal Social Security Act (42 U.S.C. s.416).

     j.     Alimony may be modified or terminated upon the prospective or actual retirement of the obligor.

     (1)   There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age, except that any arrearages that have accrued prior to the termination date shall not be vacated or annulled. The court may set a different alimony termination date for good cause shown based on specific written findings of fact and conclusions of  law.

     The rebuttable presumption may be overcome if, upon consideration of the following factors and for good cause shown, the court determines that alimony should continue:

     (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.

     If the court determines, for good cause shown based on specific written findings of fact and conclusions of law, that the presumption has been overcome, then the court shall apply the alimony factors as set forth in subsection b. of this section to the parties' current circumstances in order to determine whether modification or termination of alimony is appropriate. If the obligor intends to retire but has not yet retired, the court shall establish the conditions under which the modification or termination of alimony will be effective.