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Retirement and Spousal Maintenance Article

What happens when you are court-ordered to pay spousal maintenance and you want to retire? This question is particularly relevant as the incidence of divorce among retirement-age couples is on the rise. Even for those who are not close to retirement age, the disposition of retirement plans is a highly important aspect of dissolution for those with such plans. When to retire is no longer a simple decision given our nation’s current economic situation. Many are working longer or retiring and then beginning a new position to earn income.

Spousal Maintenance

Spousal maintenance amounts are set forth in advisory guidelines. These guidelines are discretionary and courts have significant discretion with regards to their application. When determining whether to award maintenance, a court must consider:

  • The amount of each party’s gross income
  • Marital property apportioned to each party
  • The financial resources of each party
  • Reasonable financial need as demonstrated during the marriage

In sum, if a court decides to award maintenance, then it must decide the amount and term by considering:

  • The guideline amount and term
  • A list of statutory factors, and
  • Whether the party seeking maintenance can support him or herself
Maintenance Modifications

Spousal maintenance can be modified upon a substantial and continuing change in circumstances. In cases of retirement before a customary retirement age, courts examine:

  • Whether the retirement was in good faith, i.e. not for the purpose of avoiding a support obligation, and
  • Whether the decision to retire was reasonable based on factors such as age, health and industry practice.

The burden of proof is on the party seeking a modification to show that there has been a substantial and continuing change in circumstances. When a party retires at full retirement age, there is a rebuttable presumption that the retirement is in good faith. The burden is then on the person opposing a modification of maintenance to establish that the retirement was not made in good faith. Full retirement age is determined by the retirement age set by the social security administration. This retirement age varies depending on date of birth. A new spouse’s income can not be directly attributed to the payee spouse for purposes of income in the modification analysis. In cases where retirement occurs but there is still an ability to pay spousal support from other resources, spousal support be continued as is or reduced.

Is it time to turn change into opportunity? At Janko Family Law we know how to work with you to reach your transition goals. We are committed to pursuing settlement to preserve family relations to the maximum extent possible, however also zealously represent your interests in contested litigation if desired or necessary. We can also handle appeals if the event that the trial court errors in fact or law. Give us a call for a complimentary case assessment at 719-344-5523, or fill out our confidential online intake form.

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