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Does Retirement End Alimony?

Does Retirement End Alimony?

In Cusick v. Cusick, the Defendant, Janet Cusick, appealed from a 2013 Family Court order that terminated her right to receive alimony from the Plaintiff, William Cusick based upon his claim that he was forced into retirement. The Order also ended the Plaintiff’s obligation to reimburse the Defendant for insurance and medical expenses related to the parties’ children. The Appellate Court vacated these parts of the Family Court Order and remanded the case back to the Family Court for a full explanation of the judge’s decision and for an application of certain factors to determine if retirement should end his alimony obligation. The parties in this case were married in 1985. From their marriage, two children were born, twins, born in 1990. The divorce Complaint was filed in 2007 and the parties engaged a retired judge to act as a financial arbiter who issued a decision in 2008 awarding the Defendant $300 a week in alimony. At that time the Defendant was 44 years old and the Plaintiff was 63 years old. The arbiter acknowledged that the Plaintiff’s “bona fide retirement . . . [would] be a substantial change in circumstances that would warrant modification, if not termination of his alimony obligation.” This decision was incorporated into the parties’ Final Judgment of Divorce in 2008. In 2013, the Plaintiff filed a Motion with the court to terminate his alimony obligation, certifying that he was forced into retirement and was unable to secure other employment through headhunters or by directly applying for jobs. In his Motion, he stated that his only “guaranteed” income would be his Social Security entitlement of $2,034.30 per month. The Defendant opposed the Motion and sought a Court Order to require the Plaintiff to continue paying his obligation and for arrears including medical insurance and medical treatment expenses. Following oral argument, the Family Court judge denied the Defendant’s request and granted the Plaintiff’s request to terminate his alimony obligation. The Defendant appealed. According to the Appellate Division: “In an application brought by a supporting spouse for a downward modification in alimony . . . the central issue is the supporting spouse’s ability to pay.” Miller v. Miller, 160 N.J. 408, 420 (1999). A supporting spouse’s income is just one of the factor’s that should be considered when determining his or her ability to pay support. There are other factors to be considered such as “[r]eal property, capital assets, investment portfolio, and capacity to earn by ‘diligent attention to . . . business.” Innes v. Innes, 117 N.J. 496, 503 (1990). With regard to retirement age and the termination of alimony, numerous factors must be considered when a court determines whether a party’s retirement including “age, health of the [retiring] party, the motives in retiring, the timing of the retirement, ability to pay maintenance even after retirement, and the ability of the other spouse to provide for himself or herself.” Deegan v. Deegan, 254 N.J. Super. 350, 357-58 (App. Div. 1992). The Appellate Court judges held that upon a review of the record, the Family Court judge did not adequately consider all of these factors, or at least, did not articulate such a consideration in reaching the decision that the termination of alimony was warranted. Therefore, the case was remanded back to the Family Court for such a determination. If you anticipate that you may want to petition the court for a modification of your alimony award or any other relief that was awarded in a final judgment of divorce it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about divorce, alimony, child support, custody, parenting time, equitable distribution, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

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