A person seeking to modify their alimony obligation must prove that a substantial change in circumstances has occurred warranting a modification or termination of alimony. In certain circumstances, good faith retirement at age sixty-five may constitute a substantial change in circumstances. Once the payor has met their burden of proving that a substantial change in circumstances has occurred, a plenary hearing should be held to determine whether the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse.
There are a variety of factors which should be considered in analyzing whether the payor’s retirement justifies a modification or termination of alimony, including:
- The age gap between the parties;
- Whether any attention was given by the parties to the possibility of future retirement at the time of the initial alimony award;
- 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;
- The financial impact of that retirement upon the respective financial positions of the parties;
- The motivation which led to the decision to retire;
- The degree of control retained by the parties over the disbursement of their retirement income, e.g., the ability to defer receipt of retirement income;
- Whether either spouse has transferred assets to others
If a Court finds that a primary reason the person is seeking to retire is to avoid his or her alimony obligation, it is likely that the application to modify or terminate alimony will be denied. If you have an alimony obligation and wish to retire, it is important to consult with an experienced family law attorney well in advance of your anticipated retirement date.