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Alimony & Retirement- Evidence Requirements for Alimony Terminations Due to Retirement

Posted by Vincent Deluca | Jun 30, 2020 | 0 Comments

Retirement has long been a qualifying reason for alimony modifications, but the 2014 amended alimony statute brought about some notable changes.  The most dramatic of these changes has to do with the burden of proof, which prior to the amendments, was on the obligor.  Hence, the process would begin with the obligor filing an alimony modification request.  At the hearing, it would be the obligor who would need to prove a case for why alimony should be terminated upon his or her retirement.  As of September 10, 2014, the burden of proof shifted to the alimony recipient, regardless of whether the obligor sought early retirement, or retirement at the age set by the Social Security Administration.  This requirement is reflected in N.J.S.A. 2:A-34-23(j), which states “There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age...”

Initially, there was controversy over whether the amendment applied to alimony orders that were filed before September 10, 2014.  This question was addressed in the 2016 Appellate Division ruling in the case of Landers v. Landers.  In 1991, the wife in this case was awarded a declining unallocated support amount after 22 years of marriage.  Upon turning 66, the husband filed to terminate his alimony obligations based on his wish to retire as a result of various medical issues.  He stated that his wife was still working and collecting social security benefits under his record, while he would be limited to social security and his share of his pension plan upon retiring. The wife argued that she was not working due to medical conditions of her own, and that her income, aside from alimony, consisted of social security disability payments and the derivative benefits under her husband's record.  In addition, the wife argued that the amended alimony statute should not apply to her alimony award, which was awarded well before September 10, 2014.

The trial court ruled in favor of the husband, but the Appellate Division reversed this ruling on the basis that subsections of N.J.S.A. 2:A-34-23(j) does distinguish alimony orders that were entered after the amendment date.  While other amended portions of the alimony statute are less specific, it was “unambiguous” that subsection (j) does direct courts to factor in the September date in the examination of alimony modifications due to retirement.  Thus, the trial court was faulty in its decision to rely on the rebuttal presumption of alimony terminating upon the husband's retirement age in Landers.  Furthermore, their rationale pertaining to the wife's failure to meet specific evidentiary requirements were flawed as well, since the alimony was awarded prior to the amendment date.  In this case, the burden of proof for why alimony should be terminated was on the husband, not the wife.  In spite of these clarifications, alimony modifications continue to present complications that are unique to each individual case.  For more information on alimony and other support modifications, please speak with the attorneys of Villani & DeLuca, P.C.

About the Author

Vincent Deluca

A founding member of Villani & DeLuca and has devotes the entirety of his practice to family law. Mr. DeLuca Esq. is a trained divorce mediator and collaborative divorce attorney

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Vincent DeLuca, Esq.

As a founding partner at Villani & DeLuca, Vincent DeLuca is one of only a few Certified Matrimonial Law Attorney in Ocean County, New Jersey. Mr. DeLuca has helped many clients navigate the delicate details of their own divorce. Mr. DeLuca is also a trained divorce mediator and collaborative divorce attorney. Call today at (732) 965-3404 to speak to Mr. DeLuca or one of our experienced NJ Divorce Lawyers.

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