Will I Have to Pay Alimony to My Former Spouse After I Retire?
Mar 6, 2023 | Written by: | Share
In a recent New Jersey Appellate Division decision, the court overturned the lower court’s termination of a 74-year-old’s alimony obligation. This case illustrates the importance of clarity surrounding the terms of retirement when drafting a divorce agreement (marital settlement agreement).
In the Sammarco case, the former husband sought to terminate his alimony obligation, telling the trial court that he was retired, suffering from medical issues, and surviving solely on social security retirement benefits. The husband had been paying alimony since the divorce in 1999, however his former wife objected to his request to terminate alimony. The trial judge ultimately granted the husband’s motion and terminated alimony, without a plenary hearing (trial), and the Appellate Division reversed the decision indicating that the trial court is required to allow a period for discovery and then a hearing. Importantly, the higher court found that the lower court failed to apply the correct legal standard. That issue is the subject of this blog.
When examining applications such as these, we first must decide which part of the alimony statute is applicable to the inquiry. As the Appellate Division makes clear, N.J.S.A. 34-23(j)(3) applies to motions to terminate alimony where the Final Judgment of Divorce was issued prior to September 10, 2014, the effective date of sections (j)(1)-(3).
Because these parties were divorced in 1999, the trial court was required to apply N.J.S.A. 2A:34-23(j)(3), however, it instead focused on subsection (j)(1). While the trial court may have come to the same conclusion under the other provision ((j)(3)), because the decision relied on the wrong part of the statute, the Appellate Division found same to be an error. That error was costly for a number of reasons for these parties.
There is a significant difference between these two subsections. Subsection (j)(1 reads, in pertinent part, “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.”
Subsection(j)(3) states, in pertinent part, “When a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act, the obligor's reaching full retirement age as defined in this section shall be deemed a good faith retirement age. Upon application by the obligor to modify or terminate alimony, both the obligor's application to the court for modification or termination of alimony and the obligee's response to the application shall be accompanied by current [CISs] or other relevant documents as required by the Rules of Court, as well as the [CIS] or other documents from the date of entry of the original alimony award and from the date of any subsequent modification. In making its determination, the court shall consider the ability of the obligee to have saved adequately for retirement as well as the following factors in order to determine whether the obligor, by a preponderance of the evidence, has demonstrated that modification or termination of alimony is appropriate.”
Understanding which part of the alimony statute and retirement applies to your case and facts is crucially important. As the Sammarco case demonstrates, more than two years passed between the husband’s application and the appeal; he is now 77 and still paying alimony. The financial consequences are likely serious, based on the limited information provided.
This case teaches us that, whenever possible, divorce agreements (marital settlement agreements) should be clear as to what constitutes retirement, and the respective burdens on each party. I often describe this type of post-judgment litigation as worse than the underlying divorce, just decades later. It is costly and time-consuming. To avoid these types of situations, I often advise my clients to seek agreements that include a termination clause wherever possible, or at least to obtain clarity on how to terminate and what these terms mean.
It is also noteworthy that the husband appears to have been self-represented, which can often be described as a fool’s errand. One cannot help but wonder whether having counsel would have impacted the outcome and saved everyone a lot of time and money.
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, 2018, 2019, 2020 and 2021, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.