Court Applies Wrong Retirement Standard to Pre-2014 Child Support Obligations | Fox Rothschild LLP

I still hear people call the 2014 amendments to the Child Support Act “the new law.” Almost 9 years later it is not new anymore. However, as of that time, there are still not many statutes interpreting it, other than several cases dealing with cohabitation (another is now pending in the New Jersey Supreme Court).

And even though he’s almost 9 years old, confusion lingers as to how retirement will affect alimony. One reason is that the 2014 changes treat retirement in three different ways. First, there are maintenance obligations that arose after the law came into force. There are also new provisions relating to early retirement. Finally, there are different standards regarding retirement for divorces that are before the law. The main difference between the p0st-2014 and pre-2014 standards is that the post-enactment standards provide a rebuttable presumption that alimony payments should end when the payer reaches normal retirement age (for most people it is 67 at this point) . There is no pre-amendment pre-amendment presumption of maintenance and therefore in many cases it appears more difficult to get out of maintenance. Unless otherwise specified, the payer retains the burden of proof, as opposed to shifting the burden to the recipient in post-amendment cases.

And while the law seems clear, even judges sometimes get it wrong. That is exactly what happened in the Sammarco v. Sammarco case, an unreported (non-precedent) decision by the Appellate Division that was released on February 13, 2023. The Amending Standard was used to address alimony payments that were first ordered to be paid following a court case in 1999.

The 1999 alimony obligation remained in place until May 2021, when the defendant applied to cancel alimony on three grounds: he was seventy-four years old and past retirement age; he had been unemployed since March 2020 and lived solely on his social security; and he had medical problems that affected his ability to work. The trial court finally found that the beneficiary could not rebut the rebuttable presumption that the payer’s maintenance would end upon reaching full age. In doing so, the court applied the statutory factors found at NJSA 2A:34-23(J)(1), which are the standards applicable to post-amendment support obligations. (J)(1) provides that:

There is a rebuttable presumption that alimony ends when the debtor spouse or partner reaches full retirement age, except that any arrears accrued prior to the termination date will not be waived or annulled. The court can decide otherwise
Termination of maintenance for an important reason based on concrete written factual and legal findings.
The rebuttable presumption may be rebutted if the court finds that the maintenance should continue, taking into account the following factors and for good cause:
(a) The ages of the parties at the time of the retirement application;
(b) The ages of the parties at the time of marriage or civil partnership and their ages at the time of marriage
time of receipt of the maintenance claim;
(c) the extent and duration of the beneficiary’s economic dependence on the payer during the marriage or civil partnership;
(d) Whether the recipient has waived, relinquished or otherwise sacrificed any claim, right or property in exchange for a larger or longer payment of maintenance;
(e) the length of time or amount of any maintenance already paid;
(f) The health of the parties at the time of the retirement request;
(g) assets of the parties at the time of the application for retirement;
(h) whether the recipient has reached full retirement age, as defined in this section;
(i) sources of income, both earned and unearned, of the parties;
(j) The recipient’s ability to have adequate savings for retirement; And
(k) Any other factors that the court considers relevant.

The Appellate Division agreed with the recipient’s argument that the court should have applied the factors found in NJSA 2A:34-23(J)(3), which are the standards applicable to pre-amendment support obligations. These factors are:

If a request for retirement is filed in cases where a final maintenance order or enforceable written agreement exists prior to the entry into force of this Act, the debtor’s attainment of full retirement age shall be deemed in good faith for the purposes of this section
retirement age. Upon the debtor’s application for modification or cancellation of alimony, both the debtor’s application to the court for modification or cancellation of alimony and the creditor’s response to the application shall be electrified [CISs] or other relevant documents as required by court order, as well as the [CIS] or other documents from the date of filing the original maintenance claim and from the date of any subsequent amendment. In making its determination, the court will consider the creditor’s ability to have adequate savings for retirement and the following factors to determine whether the debtor has established overwhelming evidence that a modification or termination of maintenance is appropriate:
(a) the age and health of the parties at the time of application;
(b) Debtor’s sector of employment and generally accepted retirement age for persons in that sector;
(c) The age at which the obligor can retire from the obligor’s place of work, including mandatory retirement dates or the dates on which
continued employment would no longer increase the old-age pension;
(d) the debtor’s motives for retiring, including any pressure exerted by the debtor’s employer to retire or any incentive plans offered by the debtor’s employer;
(e) the reasonable expectations of the parties regarding retirement during the marriage or civil partnership and at the time of divorce or dissolution;
(f) the debtor’s ability to maintain maintenance payments after retirement, including whether the debtor will continue to work part-time or on reduced hours;
(g) the creditor’s degree of financial independence and the financial impact of the debtor’s exit on the creditor; And
(h) Any other relevant factors affecting the parties’ respective financial positions.

Here the error was obvious and the matter was referred back for clarification and possibly a hearing in plenary. One has to wonder if this will be a Pyrrhic victory at best. The canceled child support obligation was only $118 per week. The case found that the payer’s only income was Social Security. Perhaps the discovery shows otherwise, or that the payer has amassed substantial assets that enable him to continue paying child support. But if not, then years and money will be wasted because the trial court didn’t apply the correct law in the first place. Given the alleged circumstances, that would be a shame.

Unfortunately, just like my last blog post on the parental alienation case, where the trial court’s decision appeared to be “correct,” it was reversed due to procedural errors, so the ultimately correct result could be marred by court errors.

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