Op-Ed: Results of New Jersey’s Amended Alimony Regulation on Retirees

Kelley M. Rutkowski and Carl J. Soranno Under the recently amended New Jersey Maintenance Act, a party may attempt to terminate or change its spousal maintenance obligation based on actual or “anticipated” retirement. In other words, the law empowers courts to consider a paying spouse’s request for termination or change in maintenance either: (1) if that person has actually retired, or (2) if they intend to retire, but has not yet done so (in which case the court may establish conditions under which the change or termination will take effect).

Prior to the change in law, a paying spouse was often in a “catch 22” situation. By requiring that you retire first (and unilaterally end your main or sole source of income) before filing a petition for change or termination of maintenance in court, a debtor can never know in advance – before making the decision , actually retire from working life – whether the existing maintenance obligation would change after retirement.

This change in the law was logically designed to prevent a debtor from getting into such a situation by creating a mechanism whereby a person who wishes to retire, either now or in the near future, can make a prospective preliminary ruling on a possible termination or change her or her maintenance obligation. However, the new law does not define the term “prospective”. Therefore, it is not clear at what point a paying spouse can apply for a change in maintenance prior to retirement.

This issue was recently raised by Ocean County Supreme Court Justice Lawrence Jones in an unpublished court ruling dated June 2, 2016. In the case of Mueller v. Mueller married the plaintiff and defendant in 1986 and divorced in 2006.

Under the parties’ settlement agreement, the plaintiff agreed to pay the defendant $ 300 per week as permanent maintenance. The settlement agreement did not contain any express provision of retirement and / or its relationship to the plaintiff’s maintenance obligation. At the age of 57, according to the recently amended New Jersey Alimony Statement, the plaintiff filed a motion for a resolution to presumably end his maintenance obligation with effect on his retirement, which would not take place until five years later.

Judge Jones dismissed the plaintiff’s motion, ruling that a motion for a preliminary ruling to end the maintenance in five years was “just too far ahead of the event.” The judge found that the plaintiff’s application was “premature, also as a“ probable ”retirement according to the amended Maintenance Act”, because “[s]Such a request inherently invites considerable speculation and implicitly “undermines” the ability of the courts to conduct the legal comparative analysis required under the Maintenance Act. Judge Jones stated that examining the plaintiff’s application five years prior to retirement would “ignore the practical reality that the economic situation, the health of the parties and other relevant factors” [could] change radically over such a long period of time before actually retiring. ”

In this case, it is safe to say that the judgment was correct. Common sense tells us that lawmakers likely didn’t intend the change to apply to those who don’t plan on retiring for a few more years. As Judge Jones rightly pointed out, every case is fact sensitive and so much could happen in a five year period to change a case’s financial landscape. Hence, any attempt to conduct the required legal analysis well in advance of actual retirement would be “likely to involve long-term guesswork”.

Unfortunately, we still do not have a precise definition of the word “prospective”. Therefore, it is not clear how long before retirement the court will consider an application for termination or change in maintenance. However, Judge Jones implied in his ruling that requests for a change in alimony based on anticipated retirement rather than actual retirement would be reasonably much closer to the anticipated retirement date – perhaps “twelve to eighteen months before” actual retirement.

The court suggested that in such cases the applicant should provide “a specially detailed proposed actual retirement plan” that includes “not only a proposed specific retirement date but also details regarding the debtor’s self-employment plan” could. also after retirement ”, which information is relevant for taking into account the financial impact of the planned retirement.

Editor’s note: The Mueller statement on which this article is based has now been approved for publication by the Judicial Committee for Expert Opinions. As a result, the decision now sets a precedent and is deemed citable and binding in courts across the state.

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