This might come as a surprise, but an individual’s retirement often has a significant effect on post-divorce matters. For example, if the supporting spouse retires, this may lead to a modification of alimony payments that he or she is required to pay the dependent spouse. The criteria for modification in the event of retirement are the following: whether the retirement is permanent or temporary, whether the initial divorce agreement had considerations for retirement, the inability to maintain he or she’s same standard of living once retired, and balancing the needs of the alimony recipient and the supporting spouse.
However, there are certain professions that have mandatory early retirement ages. For example, state troopers in New Jersey are required to retire at 55 years old, whereas the national retirement age is 67.
The court in Lepis v. Lepis established a three-prong analysis permitting a party to modify their alimony obligations when a substantial change is circumstances is shown. These factors include:
- Establishing a prima facie case;
- Showing that the party will be unable to maintain their standard of living; and,
- Weighting the needs of the alimony recipient and supporting spouse’s ability to pay.
Furthermore, Lepis also established that, in order to establish a prima facie case, two additional factors must be shown. They are (a) whether the change in circumstances is continuing or permanent; and (b) whether the original divorce decree has made an explicit provision for such a change.
Applying these factors to an early retirement situation, it is likely that all factors can be met. A prima facie case can be shown because the party being forced to retire cannot return to the position he or she is retiring from and is therefore permanent. In addition, a mandatory early retirement is likely known when the party enters the profession and, is therefore known when the original divorce decree is entered. Thus, it is unlikely to come as a shock to either of the parties when alimony has to be modified due to early retirement. Furthermore, applying the other Lepis factors, the same lifestyle is unlikely to be wholly maintained following retirement, as there is a decrease in income.
In addition to the above, when determining whether mandatory early retirement is reasonable, a court may consider the following factors: whether at the time of the initial alimony award any attention was given by the parties to the possibility of future retirement; whether the particular retirement was mandatory or voluntary; whether the particular retirement occurred earlier than might have been anticipated at the time alimony was awarded; and the financial impact of that retirement upon the respective financial position of the parties. Applying these factors, mandatory retirement will likely be found reasonable because the party has no choice but to retire (and take a decrease in income), and with one party entering a profession, it is likely that both parties knew that mandatory retirement was inevitable and therefore, anticipated.
Applying the above analysis establishing a prima facie case of changed circumstances as well as showing that mandatory retirements are reasonable as a precursor to modify alimony, it is likely that such retirements, while before the national retirement age of 67, will warrant a modification of alimony. However, each divorce is different and each with their own, unique set of facts that an experienced attorney can apply to the above factors.