Yes, a 29-year-old marriage proposal opens permanent alimony | Fox Rothschild LLP

Since the adoption of the amendments to the Maintenance Act in 2014, we have been witnessing the clutching of pearls and gnashing of teeth as to what to do in long-term marriages (over 20 years) when the maintenance payer is in his/her 60s. With the change in the statutes, a clear limit of 20 years was set for the right to open maintenance. Temporary maintenance was legally limited to “until the duration of the marriage”. The law also established an expected retirement age tied to Social Security, which is now 67 for most people.

However, people did not know what to do in cases where open alimony payments would otherwise be required, but the payer is still several years shy of the expected retirement age. Sometimes parties enter into agreements that terminate alimony at retirement age or, alternatively, end when the payor retires if this is after retirement age. I have seen others where a payer has agreed to a date after retirement age in exchange for a fixed end date without having to go to court.

Alternatively, if the parties cannot agree on a settlement, the parties may accept a second dispute if the payor is approaching retirement age and wishes to retire at or after the expected retirement age.

What I have not yet experienced is a court ordering temporary maintenance when open maintenance would otherwise be required. I say “Until now” because on March 29, 2024, Frey v. Frey was issued, an unreported (non-priority) opinion that overturned the court’s award of a 4-year alimony sentence after a 29-year marriage.

In this case, the payer was 62 years old at the time of the decision in 2021 (after a case filed in 2017 and an 11-day trial that spanned 21 months), “…the defendant will reach retirement age for social reasons achieve security and may well decide to retire.” The Appellate Division declined to do so, clarifying that:

“This is not a basis for granting temporary maintenance in a long-term marriage.

The Appellate Division further noted that the Maintenance Act permits modification or termination of a maintenance award upon the payor's expected or actual retirement age. The court also noted that reaching full retirement age creates a rebuttable presumption that support has ended. However, the appeal judges noted that there was no evidence in the documents that the payer would retire before reaching full retirement age. In fact, they discovered that he had just started a business. This is how the court decided:

“Therefore, it was a reversible error for the court to award temporary maintenance because
The defendant “could” attempt to retire in the future.

There were other interesting parts of the case that were reversed (the amount of alimony, the division of debts, and attorney fees, to name a few), but the real takeaway from the case is that judges typically can't set a time limit on it less than blatant, persistent lack of evidence or testimony that retirement is imminent. Even in these cases, it could be a reversible error if the time limit is not tied to actual retirement after reaching full retirement age (and even then this could be problematic since courts should not make prospective decisions in most cases).

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