Alimony is support paid by one spouse, known as the payor, towards the maintenance of the other spouse, known as the payee. In many cases, alimony terminates after a specific period of time, based on the length of the marriage. In some cases, however, it terminates upon the payor’s retirement, or when the payor reaches retirement age. Much of this depends on a number of factors. To list just a few examples, factors may include the length of the parties’ marriage, the orders noted in the divorce decree, the income of the payor spouse, and the needs of the payee. Here, we will explore what could happen to an alimony obligation if the payor retires.
The Effect of Working Part-Time
What if the payor spouse is retired from full-time employment, but continues to work part-time? In that case, the Probate and Family Court will likely take into consideration the amount of income the payor spouse receives from his or her part-time work. While semantically, the payor spouse may consider him or herself retired, the court may account for the part-time income. The court did just that in the case of Pierce v. Pierce, discussed below. In this case, the court included the payor’s income from part-time employment in determining whether alimony should be paid.
Generally, when making its decision, the court will likely decide whether to terminate or reduce alimony by weighing the needs of the payee against the payor’s ability to pay. The court did this in several of the cases cited below.
Pierce v. Pierce
In Pierce, the Massachusetts Supreme Judicial Court affirmed a modification order that reduced, rather than terminated, alimony when a husband retired as a partner at a law firm. Pierce v. Pierce, 455 Mass. 286 (2009). The husband’s severely reduced annual income consisted of Social Security income, dividends, interest, and “one-time” income as a lawyer. The wife, on the other hand, was unemployed and received neither Social Security nor unemployment benefits. In view of the husband’s age and wish to retire and the wife’s recent loss of employment and desire not to apply for Social Security until she was eligible for full retirement benefits, the trial court did not abuse its discretion.
The Pierce case rejected the proposition that a support provider’s retirement creates a rebuttable presumption terminating any ongoing alimony obligation. The high court stated: “In determining a fair balance of sacrifice between the parties, the judge may credit that the support provider has good faith, persuasive reasons for selecting employment paying less than his or her potential earning capacity. People often prefer careers that may not maximize their lifetime income, and divorce should not entirely deprive an individual of this freedom. But these considerations must be balanced against a provider’s obligation to support the former spouse.”
Modification or Termination of Alimony
It is important to note that a spouse should not necessarily stop making alimony payments upon retirement, and may need to file a complaint for termination or modification of alimony. It is possible for the court to order that alimony arrears be paid on any payments that were not made on time, should the court find that alimony should be modified, but not terminated. The Pierce case, for example, also addressed the issue of the husband needing to pay alimony arrears to the wife, calculating the money he owed as a result of not paying alimony after he chose to retire.
Retirement and the Alimony Reform Act
In 2013, Massachusetts passed the Alimony Reform Act, which, among other things, set durational limits on alimony payments. In addition, the Act made it so that alimony would cease once a payor party reaches retirement age. What if the court ordered a party to pay alimony before the Act, but the party has since reached retirement age? A number of cases address this issue.
Chin v. Merriot
In Chin v. Merriot, the Supreme Judicial Court affirmed a dismissal of a husband’s complaint for modification. Chin v. Merriot, 470 Mass. 527 (2015). In this case, the parties’ divorce decree stated the husband would pay alimony to the wife until the death of either party or the wife’s remarriage. Pursuant to the passage of the Alimony Reform Act, the husband filed a complaint for modification in 2013.
The husband relied on the retirement and cohabitation provisions of the Act. He asserted as “a change of circumstances” that he had attained the age of 68, which is “full retirement age” as defined by G. L. c. 208, § 48. He argued that, pursuant to G. L. c. 208, § 49 (f) (retirement provision), “general term alimony orders shall terminate upon the payor attaining the full retirement age.” The court held that both the retirement provision and the cohabitation provision applied prospectively to alimony obligations. Therefore, there was no basis upon which to terminate the alimony order in this case.
Rodman v. Rodman
Similarly, in Rodman v. Rodman, the Supreme Judicial Court held that the Act did not apply retroactively to alimony orders in divorce judgments that entered before March 1, 2012. This is because the Legislature plainly intended that only a claim for modification based on durational limits may, but will not always, apply retroactively to existing alimony judgments. Rodman v. Rodman, 470 Mass. 539 (2015). In this case, the husband likewise claimed that because he had reached retirement age, his obligation to pay alimony should cease.
Bambauer v. Bambauer
In Bambauer v. Bambauer, the Appeals Court affirmed a modification judgment that upheld the husband’s obligation to pay alimony. The parties in the case were divorced after 28 years of marriage. Bambauer v. Bambauer, 89 Mass. App. Ct. 1111 (2016). Thereafter, the court reduced the husband’s alimony obligation several times on modification. One such modification, in 2001, resulted in an agreement stating that the husband could not seek to modify the alimony obligation to an amount less than $500 weekly if he retired before 2008. Again, the husband filed for a modification. He claimed that alimony should terminate because he had reached retirement age. The Appeals Court disagreed with the husband and affirmed the trial court’s decision.
The Appeals Court stated: “The husband has not made any arguments based on the law as it existed at the time of the judgment either at trial or on appeal. Even if we were to consider such an argument, we think it clear from the judge’s disposition that he found the wife in need of continuous support, did not consider termination of alimony to be an appropriate result, and that a reduction to $200 weekly struck the ‘fair balance of sacrifice'”.
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