Simon Law Group: New Case Defines “Prospective Retirement” Under Amended Alimony Law

The amended alimony law that went into effect in late 2014 raised many questions as to the meaning of its terms and how such terms will be applied, especially as to how a payor’s retirement impacts upon an existing alimony obligation. As we have previously discussed, the law provides that a payor former spouse may even file an application to terminate or modify alimony based on a future, prospective retirement, at which point a court may establish under what conditions same should occur. So doing allows the payor and payee to plan accordingly by providing an indication as to whether and how alimony will end/change.

This was the topic addressed in Mueller v. Mueller, a new unpublished (not precedential) decision from the Honorable Lawrence Jones in the Ocean County Family Part. Judge Jones held as follows:

While the amended alimony law does not set a specific minimum or maximum time period for obtaining an advance ruling on a prospective retirement and its effect upon an existing support obligation, Judge Jones concluded that the statute contemplates that the prospective retirement will take effect “within reasonable proximity” to the application itself, rather than several years in advance. Notably, the judge referenced “approximately twelve to eighteen months” as an appropriate proximity. Otherwise, the application is more akin to a motion to modify a permanent alimony obligation to one of limited duration without a basis under Rule 4:50-1 or the requisite change in circumstances.
As a result, the payor’s application to terminate alimony based on a prospective retirement date to occur five years later was not considered within a reasonable proximity because “reasonably current information” relative to the time period of the proposed retirement itself could not be considered.
An order for prospective termination or modification of alimony based upon reaching a certain retirement age “inherently contemplates” that the obligor reaches a specific age and actually retires at that point. A specifically detailed proposed plan for an actual retirement must be provided, as opposed to a “non-specific, general desire to someday retire.” The specifics may include, but are not limited to, a particular retirement date, and details of the payor’s plan for economic self-support following retirement.

Here are the facts that you need to know:

The parties were married in 1986 and divorced in 2006.
The settlement agreement provided that husband would pay wife $300 per week in permanent alimony.
The agreement contained no provision expressly addressing retirement and/or its relationship to husband’s permanent alimony obligation.
Husband filed a motion under the amended alimony statute to terminate his alimony in five years from the date of his application, asserting that he was 57 years old and planed to retire in five years (at which time he was entitled to retire and receive his full employment-related pension benefit).

Analyzing the relevant facts, the court found the husband failed to provide a specific plan to retire in the near future, and that he was nowhere near even an early retirement age. Rather, he testified about a “general wish to potentially retire and terminate alimony at age 62 . . . .” Filing so far in advance was found to preclude the court from engaging in a practical analysis of the parties’ economic circumstances that would exist at the time of the termination/change, the parties’ health and other relevant factors that could dramatically change before the retirement ever occurred. As a result, the husband’s application was denied without prejudice based on his request to retire five years later.

Decisions addressing the provisions of the amended alimony law continue to emerge, and Judge Jones’ decision makes practical and logical sense when considering the retirement provisions and a payor’s ability to seek a termination/modification in light of a future, anticipated retirement date. The decision will help both litigants and practitioners in framing future applications and oppositions for such relief

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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey. He can be reached at (973) 994-7526, or repstein@foxrothschild.com.