If you are currently paying maintenance or alimony to an ex-spouse, a question that is likely on your mind is “when can I retire?”. This is a very simple question that has a very complex answer.
If your divorce decree has a set date for the termination of maintenance, whether it is at the expiration of 60 months or after the payment of 120 months of maintenance, then the court will expect, absent some extenuating circumstance, you will work through the date of the termination of maintenance payments. An extenuating circumstance might be, for example, if you experience a medical condition that requires you to stop working or causes you to work less. In these instances, a court might consider this circumstance in modifying or terminating your maintenance. If the demands of your job change, where working at the same pace becomes difficult, perhaps the court will consider the new requirements in determining whether to modify or terminate maintenance. It is important to understand that if you have a set time frame for maintenance, you may have a difficult time terminating maintenance or modifying maintenance prior to the expiration set by the court.
If your maintenance obligation is “non-modifiable”, then the court is prohibited from modifying maintenance under any circumstance. While you could retire during your maintenance obligation, the court will not modify your maintenance due to that retirement and you will have to pay your maintenance obligation with funds other than your employment income.
If your maintenance obligation has no termination date or is “indefinite”, then the question of when you can retire requires more of an analysis. First, indefinite maintenance does not mean you will be paying maintenance forever. Indefinite maintenance requires you to make your payments until there is a “substantial change in circumstances.” Retirement is considered a substantial change in circumstances; however, that is not the end of the analysis. Retirement is not an automatic trigger for a modification or termination. In order for the court to grant you relief from maintenance, either by terminating or modifying maintenance due to your retirement, your decision to retire has to be reasonable under all the circumstances. In determining what is reasonable, the court is going to analyze both parties’ “needs” as well as what is “equitable”. As you can imagine, this analysis is going to vary greatly from situation to situation. The court is going to give consideration to the length of time between the divorce and the decision to retire and consideration will be given to your age and your health. Further, the court is going to analyze both parties’ current lifestyles as well at the time of divorce. This analysis is extremely fact-driven and requires an attorney who has in-depth knowledge of the recent case law addressing such situations.
If you are currently in the process of divorce and negotiating maintenance, consideration should be given to your anticipated retirement date. Planning in advance can alleviate post-judgment litigation and set some expectations for the termination of maintenance based on retirement.
If you are currently paying maintenance and are considering retirement or in the process of negotiating a maintenance payment contact Nelson, Krueger & Millenbach, LLC at 414-258-1644 to speak with one of our attorneys regarding your specific situation.