By: Justin M. Smigelsky, Esq.
Pursuant to the recently amended alimony statute, an alimony obligor may seek to modify or terminate his or her alimony obligation upon his or her “prospective or actual retirement.” Generally, for an alimony order entered after the effective date of the statute, the revised alimony law establishes a rebuttable presumption that alimony will be terminated upon the obligor reaching full retirement age. For an alimony order entered prior to the effective date of the revised statute, the obligor’s reaching full retirement age is deemed a good faith retirement age, but the burden of proof remains with the obligor to demonstrate why alimony should terminate. Furthermore, if an alimony obligor intends to prospectively retire, the Court may establish the conditions under which termination or modification of alimony will be effective; however, the statute fails to fully define what prospective retirement actually means for purposes of an application to modify or terminate alimony.
Pursuant to N.J.S.A. 2A:34-23(j)(2),
Where the obligor seeks to retire prior to attaining the full retirement age as defined in this section [eligible to receive benefits under section 216 of the Social Security Act], the obligor shall have the burden of demonstrating by a preponderance of the evidence that the prospective or actual retirement is reasonable and made in good faith. 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 Case Information Statements or other relevant documents as required by the Rules of Court, as well as the Case Information Statements or other documents from the date of entry of the original alimony award and from the date of any subsequent modification.
The statute then lists several factors for the Court to consider in determining whether the alimony obligor has met his or her burden to demonstrate that his or her prospective or actual retirement prior to attaining full retirement age is “reasonable and made in good faith.”
In a recent, published decision of the Ocean County Superior Court, the Honorable Lawrence R. Jones, J.S.C., addressed when and how an alimony obligor may seek to modify or terminate his or her alimony obligation based upon prospective retirement. In Mueller v. Mueller, Judge Jones reasoned that, although the amended alimony statute does not set a specific minimum or maximum time period for obtaining an advance ruling on a prospective retirement, “the spirit of the amended statute…inherently contemplates that the prospective retirement will take effect within reasonable proximity to the application itself, rather than several years in advance of same.” Judge Jones went on to explain that
when an obligor reasonably approaches retirement age, and files a motion setting forth a specific proposed plan for a prospective and projective retirement in the near future, a court may now address and consider the merits of same under the amended alimony statute, and render a ruling regarding a proposed termination or modification of alimony, to take effect upon the obligor’s actual retirement in accordance with the proposed plan.
In Mueller, Judge Jones determined that an application filed five (5) years in advance of the contemplated retirement, without a detailed plan for retirement in the near future, constituted speculation and a “general desire to someday retire” which is insufficient under the statute. Although a Chancery Division case and, therefore, not binding precedent, Judge Jones’ well-reasoned decision is helpful in guiding the alimony obligor and family law attorney as to modification and termination of alimony based upon prospective retirement.
If you have any questions in regards to divorce in New Jersey, alimony, child support, equitable distribution, or family law, you may wish to consult with an experienced family law attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.
Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2017 – All Rights Reserved
Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. represents individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Hazlet, Aberdeen, Matawan, Middletown, Freehold), Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C.
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Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications