Retiring from the workforce does not necessarily mean retiring from your child support obligations.  Rather, the circumstances of each case will dictate whether a person retiring in good faith can successfully obtain a child support modification.  

The Appellate Division recently addressed this issue in Kassin v. Kassin, affirming a trial court’s decision denying a defendant father’s motion to modify his child support obligation after he was terminated from his job at age 65 due to a heart-related condition. The parties were married for 25 years and 6 children were born of the marriage prior to the parties’ divorce in 1998. At the time of the divorce, the father was employed and earning approximately $23,000 annually. At the time of his motion for a support modification, 1 of the 6 children, age 15, was still unemancipated. In March 2007, at age 65, the father was terminated from his job. He claimed in his motion that the termination was caused by his inability to perform his job duties due to a heart-related medical condition and that he was unable to secure other employment for the same reasons. He also asserted that, as a result, his only income came in the form of social security benefits and charitable assistance from private agencies, thus providing him with an annual income of approximately $20,000. It was upon these facts that the father claimed the existence of changed circumstances justifying a modification pursuant to Lepis v. Lepis, 83 N.J. 139 (1980).

Citing to Silvan v. Sylvan, 267 N.J. Super. 578 (App. Div. 1993), the Appellate Division based its decision on the following non-exhaustive list of factors to consider when a party retires at age 65 and subsists on social security benefits: 

  • the age gap between the parties;
  • whether at the time of the initial alimony award any attention was given by the parties to the possibility of future retirement;
  • whether the particular retirement was mandatory or voluntary;
  • whether the particular retirement occurred earlier than might have been anticipated at the time alimony was awarded;
  • the financial impact of that retirement upon the respective financial positions of the parties; and
  • the motivation which led to the decision to retire, i.e., was it reasonable under all the circumstances or motivated primarily by a desire to reduce the alimony of a former spouse. 

In denying the father’s motion, the Court concluded that the father failed to submit evidence sufficiently linking his medical condition to his inability to work and of his search for other employment, as well as the fact that the income differential pre- and post-job termination was too insubstantial to constitute a changed circumstance. Notably, the Court reminded the father that, as a so-called "late in life" parent who, at age 65, still had an unemancipated child, he was responsible for working and saving for this child beyond an otherwise expected age.

Also of note was that, despite denying the father’s motion, the Court nevertheless remanded the case for a credit to be calculated on the father’s child support obligation pursuant to New Jersey’s Child Support Guidelines because the mother was receiving social security benefits for the unemancipated child.

This case highlights how simply wanting to retire early in good faith (rather than retiring to simply avoid a support obligation) is not as easy as it seems when the potential retiree has existing child support (similar issues arise in the context of alimony) obligations. 

EDITOR’S NOTE:  It seems unlikely as a matter of public policy that someone will ever be allowed to "retire" under any circumstances to avoid a child support obligation.  If there is a bona fide disability, that is another story however as that is usually beyond the obligor’s control.  Absent disability, late in life parents will more likely than not be required to keep working and/or otherwise be required to pay support until all of their children are emancipated. – Eric S. Solotoff