Changes in Alimony Upon the Retirement of the Spouse Who Must Pay It

Landers v. Landers, 444 N.J. Super. 315 (App. Div. 2016).  This opinion by Judge Lihotz addresses when alimony can be changed due to the retirement of the spouse obligated to pay that alimony.  In 2014, the statute governing alimony was amended to add a new section (j) to N.J.S.A. 2A:34-23.  That new section “lists objective considerations a judge must examine and weigh when reviewing an obligor’s request to modify or terminate alimony when an obligor retires.”  A good faith retirement has long been recognized as “changed circumstances” that may support a change in alimony.  The 2014 amendments sought to make the inquiry in this regard more concrete.

The new section distinguished, however, between “alimony orders executed prior to the amendment date and those executed afterwards.”  For the latter, section (j)(1) establishes a rebuttable presumption that alimony will terminate upon the retirement of the obligor spouse (though arrearages do not disappear as a result of retirement).  The obligee may rebut the presumption based on a lengthy list of considerations itemized in section (j)(1).  Alimony orders that predate the 2014 amendments, however, are governed by section (j)(3).  That provision contains a different standard, which requires the obligor to demonstrate that modification or termination of alimony is appropriate.  Section (j)(3) also contains different factors than does section (j)(1), and “elevates the ability of the obligee to have saved adequately for retirement,” which is listed only as a factor under section (j)(1).

The alimony order in this case predated the 2014 amendments.  Despite that, the Family Part mistakenly applied the rebuttable presumption of section (j)(1) instead of the test of section (j)(3).  Judge Lihotz recognized that, “if read in isolation, section (j)(1) appears to apply to any motion to modify or terminate alimony upon an obligor’s retirement.”  But sections (j)(1) and (j)(3) were to be read “together as a unitary and harmonious whole.”  Doing that, and applying the plain language of the two sections, meant that the Family Part had erred.  Since this was a pure issue of law, the de novo standard of review applied, and the decision of the Family Part was reversed.

Though this issue seems straightforward in light of Judge Lihotz’s clear explanation, the decision below may have evidenced confusion at the Family Part level about the proper way to apply the 2014 amendments.  This opinion dispels any such confusion, which was presumably why the decision was designated for publication.