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Retiring in a Down Economy
With an influx of applications by payor former spouses seeking to modify an existing alimony/spousal support obligation, much has been written about the impact of the economic decline on post-judgment litigation over the past few years. Hundreds of thousands ' if not millions ' of people have lost their jobs as employers attempt to become “leaner” to survive, while certain entities have been effectively eliminated altogether, especially on Wall Street and elsewhere in the financial and real estate sectors. In light of this ongoing situation, courts have had to apply a stricter level of scrutiny to the application of the law with regard to modification of judgments to determine which payors are truly suffering a change in their financial status meriting relief, and which ones are disingenuously trying to take advantage of a potentially fleeting opportunity.
Retirement
Under that backdrop, one area particularly worthy of discussion is a payor's ability to retire and successfully seek a modification of his support obligation. In most states, a court will analyze whether the decision to retire was made in “good faith,” or with an ulterior motive, i.e., support reduction. Good faith is a broad concept to say the least, but in New Jersey, pursuant to Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992), it generally begins with a look at the retiree's age. If the retiree is 65 or older, courts perform a fact-based analysis by looking at the reasons or motive for retirement, the ability of the retiree to continue working and at what earning capacity, the ability to pay support post-retirement, the supported spouse's ability to live with a reduced payment, the medical condition of each party, and the value of assets obtained post-judgment that can be utilized to pay.
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