Most people assume that once the traditional retirement age approaches, alimony will end.  While 65 has been quoted in many cases as a good faith retirement age, such does not automatically equate a stop to an alimony obligation.

In the recent unreported  decision of Smith v. Smith, the parties had been married forty years before divorcing in 1999. At the time of the divorce the husband was a truck driver earning $90,000 per year.  His alimony was reduced twice after the divorce when he lost his job.  The wife worked as a retail clerk.  The parties were in their 70s when the case most recently came before the court on the ex-wife’s motion to collect her alimony arrears and the ex-husband’s cross application to terminate his support obligation based on his inability to obtain employment given his age and various health issues.

The court noted that both parties were past the traditional age of retirement, and determined that “both parties may work to obtain additional income to supplement their lifestyles, but [the court] will not require either party at this stage in each party’s life to continue working for purposes of calculating alimony.”

The court then accepted the ex-husband’s projected income consisting of Social Security and  pension income, and then, for the ex-wife, that she could received social security and her portion of the ex-husband’s pension.  The judge then considered each

party’s inability to meet their financial needs, and equalized the difference in their incomes by awarding the ex-wife a reduced amount of alimony.

The Appellate Division affirmed the trial court’s decision, noting that it is both parties’ circumstances which must be considered when reviewing an application to modify support obligations.  The court had noted that both parties were past the traditional retirement age, had various health issues, and thus did not take any earned income, or earning capacity into account when making its determination.

This case highlights the difficult issues facing an aging population when alimony obligations have to be reviewed.  The court is mandated by statute to consider the incomes and financial circumstances of both parties.  By equalizing incomes in this particular case, the court seemed to equalize the pain of the financial situation as well.  What is interesting in this case, is that while courts do not typically equalize income when setting alimony after a consideration of the statutory factors, the result is different at the review later on.  It certainly appears that the compelling factors, in addition to the age and the health of the parties, were the financial resources ( or lack there of) that the parties had.

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