Under New Jersey’s recently amended alimony statute, a party may seek to terminate or modify his or her spousal support obligation based upon an actual or “prospective” retirement. In other words, the statute authorizes courts to consider a paying spouse’s request for a termination or modification of alimony either: (1) when that person has actually retired, or (2) when he/she intends to retire, but has not yet done so (in which case the court may establish conditions under which the modification or termination will be effective).
Before the amendment to the statute, a paying spouse would often find themselves in a “Catch 22” situation. By requiring that one first retire (and unilaterally terminate his or her primary or only source of income) before being permitted to file a motion with the court to modify or end alimony, an obligor could never know in advance – before making the decision to actually leave the workforce – whether the existing alimony obligation would change following retirement.
This statutory amendment was logically designed to avoid placing an obligor in such a situation by creating a mechanism by which a person who seeks to retire, either presently or in the near future, may seek a prospective advance ruling regarding potential termination or modification of his or her alimony obligation. However, the new statute does not define the term “prospective.” As a result, it is not clear at what point a paying spouse may file a motion for modification of alimony in advance of his or her retirement.
This issue was recently addressed by Ocean County Superior Court Judge Lawrence Jones in a June 2, 2016 unpublished trial court decision . In Mueller v. Mueller, the plaintiff and defendant married in 1986 and divorced in 2006.
Pursuant to the parties’ settlement agreement, the plaintiff agreed to pay the defendant $300 per week in permanent alimony. The settlement agreement contained no provision expressly addressing retirement and/or its relationship to the plaintiff’s alimony obligation. At the age of 57, the plaintiff filed a motion under New Jersey’s recently amended alimony statute asking that an order be entered prospectively terminating his alimony obligation effective upon his retirement, which was not to occur until five years later.
Judge Jones denied the plaintiff’s motion, finding that an application for an advance order terminating alimony in five years’ time was “simply too far in advance of the event.” The judge held that the plaintiff’s application was “premature, even as a ‘prospective’ retirement under the amended alimony statute,” because “[s]uch an application inherently invites significant speculation,” and “implicitly undermines” the ability of courts to perform the statutory analysis of comparative factors required under the alimony statute. Judge Jones explained that consideration of the plaintiff’s motion five years in advance of his retirement would “ignore the practical reality that the parties’ economic situations, health, and other relevant factors [could] radically change over such a lengthy period of time, before an actual retirement ever actually takes place.”
In this case, it is safe to say the court got it right. Common sense tells us the Legislature probably did not intend for the amendment to apply to those who are not planning to retire for several more years. As Judge Jones rightfully pointed out, every case is fact-sensitive and so much could occur in a five-year period to change the financial landscape of a case. As such, any attempt to engage in the necessary statutory analysis so far in advance of the actual date of retirement “would likely be replete with long-term guesswork.”
Unfortunately, we are still left with no precise definition of the word “prospective.” Therefore, it is not clear exactly how far in advance of one’s retirement the court will consider a motion to end or modify alimony. However, Judge Jones implied in his decision that applications to modify alimony based on prospective rather than an actual retirement are more appropriately filed much closer to the prospective retirement date – perhaps “twelve to eighteen months before” actual retirement.
The court suggested that in such cases, the applicant should present “a specifically detailed, proposed plan for an actual retirement,” which might include “not only a proposed specific date of retirement, but details in terms of the obligor’s plan for economic self-support following retirement as well,” which information is relevant in considering the financial implications of the proposed retirement.
Editor's note: The Mueller Opinion upon which this article was based has since been approved for publication by the Judiciary Committee on Opinions. As a result, the decision now constitutes precedent and will be available for citation and considered binding upon trial courts throughout the State.