I was reading an unreported Appellate Division case released today and gasped when I read the following sentence, " …Moreover, the permanent alimony figure was negotiated and presumably contemplated defendant’s retirement since he was fifty-three years old when he appeared before Judge Piscal on September 19, 2000."  To read the full case, click here.

While the facts in this case may have justified the denial of the former husband’s motion to modify alimony, that statement struck a chord.  In this case, the parties were married for 32 years, a long term marriage by any standards.  However, by current standards, we often start talking about long term marriages being 15 years or more and if alimony is appropriate, the discussion is about permanent alimony begins.  Moreover, although there is a well known Appellate Division case authored by Judge (now Supreme Court Justice) Long suggesting that it is better practice to negotiate the issue of retirement, the reality in practice is that it is rare that the party receiving alimony will concede the issue of retirement in the agreement.  Often it is just too speculative.  At best, you may get a recognition that there can be an application for a review upon retirement.

Given that you typically cannot get any concession about retirement and there is no doubt that this was a permanent alimony case, is the above quoted statement a fair or a realistic view?  I don’t think so. 

Assume a long term marriage where all assets, including retirement assets are equally divided.  The law is clear that you cannot look to assets divided in equitable distribution for support.  Post-divorce assets can be considered.  If in the 8 or 10 or 12 years after the divorce, after paying alimony and perhaps child support, the payor does not accumulate substantial assets, then what.  What if he bought a new house with his equitable distribution and did contribute the max to his 401k during the post divorce years.  In this economy , the value of the home and the 401k could be down substantially.

More importantly, one would think by this sentence that someone who agrees to permanent alimony can never retire.  This, however, is wrong as a matter of law.  Thus, for a court to determine that a retirement by a person who was age 53 when he agreed to permanent alimony was contemplated in the agreement, is both practically unrealistic and legally incorrect in my opinion. 

That said, as noted above, the denial of the motion to modify under the specific facts in that case made perfect sense.

However, I think it is essential, if possible, to at least get recognition in a Marital Settlement Agreement, that, if nothing else, the issue of retirement was discussed but unresolved to best preserve the issue for another day.

3 Responses to Scary Appellate Decision Regarding Permanent Alimony/Retirement

My case is nearly identical to above. During divorce negotiation the term permanent alimony until retirement was struck. The term until substantial change of circumstance was entered. So for the past 10 years I have faithfully paid alimony. I plan to retire after my 66th birthday in 2 months. sounds like I am screwed with no hope of winning a motion for alimony elimination/reduction. my x will be 65 upon my retirement and able to get 50% of my social security. she will not respond to my attempt to negotiate out of court. am I supposed to work until I die? I’ve had a job since 7th grade. what I have been able to save since the divorce should be irrelevant. after-all she was the spend thrift that helped lead to the divorce in the first place. this really screws the working man for sure. Is there any way to fight this?? the idea of paying till death is nuts.

I think the Permant alimoney laws are meant to protect all of us and you made a choice,as we all do, but time doesnt erase someone elses time. These are choices you made and a life was built with that security and should be respected.
Each party percieves the marriage different. they part and they both change with time but the affect of mofification or termination on the payees life is turned upside down.Sounds like the payor just wants out and 32 years of hardwork from the home Person just arent worth remembering to them. There is fairness to the payee,this was her career and the agreement spcifies permanantly. If on the recieving of alimoney and medical bills or circumstances depend on the income then its even more wrong to terminate or modify. This request for termination or modification is why payees need their protection. In their young adult career years supported the marriage and made it possible AND comforatable in many,many cases for the payor to produce profitably and insure a comforatable retirement his or her retirement The Mother of a family is a 24 hour nurse cook,Home Manager,Cleaning person, driver,care giver beyond recognition. 30 years long gone and obviously forgotten and unappreciated. I would not like that to happen to my or someone elses mother. Kept agreed contracts honored.

I am a woman and I believe that permanent alimony protects only the woman who made a personal CHOICE to stay home… and guess what as a working woman…it is much easier to stay home and wash dishes and manage a home than it is to go out and WORK. A 30 year marriage..What did the woman do when the child went to school. Perhaps she should have used some of this time to educate herself take a class on line or other wise be an example of hard work to her children. IT simply is not that hard to stay at home… It is much harder for those of us woman who worked and raised childredn and maintained a home… Why should someone continue to be rewarded for not working just because she did not work.. Sounds powerfully like welfare for dependent women who made the choice to be dependent. Can these women not read… 50 % of all marriages end in divorce. It would be wise to prepare to that end… and oh by the way 70% of divorces are initiated by women. Women need to wake up and be accountable for themselves.

Leave a Reply

Your email address will not be published.