There has been much ado about the new alimony statute. Obligors believe they are now in the driver’s seat when it comes to disposing of their alimony obligations. After all, the statute sends a message that alimony should at least be modified upon reaching full retirement age. Doesn’t it?

On the other hand, recipients believe that the nuances within the new statute provide them with a leg-up in terms of maintaining their alimony awards “as is”. After all, the statute provides that both parties should have been able to save for retirement in the years since the divorce. Doesn’t it?

The truth is, both the obligor and the recipient are correct. The new statute does not provide any bright line rule as to what a court must do when the obligor retires. It provides the Court, instead, with factors to consider and weigh when an obligor brings a retirement application.

It helps to think of your retirement case as if there is an imaginary chef baking a cake. The ingredients and proportions will inevitably change your end result. Likewise, every case has different ingredients and produces a different result. Of course, the chef, i.e. the judge, will also bring certain ideas into the case, that could change the result one way or another depending on the “ingredients” the litigants bring before the Court.

So that brings me to my question: should you settle your retirement case? In a word, maybe.

When I become involved in a retirement case, I tell obligors and recipients alike to think of their matter as a business transaction. Typically, most of the hurt that lingered post-divorce has dissipated. Maybe, the parties have moved on with their personal lives. Most people are ready to engage in a pure cost-benefit analysis to determine if settlement is right for them.

In order to do that in a retirement case, although a bit fatalistic, it’s important to consider the health and life-span of the obligor and recipient. For example, if a retirement application is brought when both parties are 80, a settlement would look quite different than an application brought at age 65.

It’s also important to consider the parties’ respective assets so that a lump-sum buyout can be considered and discussed.

Sometimes it bears repeating that it’s important to remember that it probably does not make sense to spend more money litigating a case in Court than you would have continuing to pay or receive alimony. Because, at that end of the day, even if you believe that you have the best ingredients and proportions, you don’t want to burn the house to the ground just to see if you can get the perfect cake in the end.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com

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