Modifying Long-Term Spousal Support at Retirement

Modifying Long-Term Spousal Support at Retirement

Under California law, there is a presumption that marriages lasting ten years or more are considered “marriages of long duration” (also known as long-term marriages). When a marriage ends in divorce in California, the presumption is that the higher earner will pay spousal support to the lower earner. The longer the length of the marriage, the longer the period of time that support will potentially have to be paid. Usually, a support order in the long-term marriage context will be in place until the death of either party, the remarriage of the person receiving the support, or a further court order. When circumstances warrant a change; however, modifications to support can be made. Retirement is one such circumstance in which a person may seek to modify spousal support payments.

Spousal Support and Your Right to Retire

According to a California court case, In re Marriage of Reynolds (1998), a spouse paying spousal support pursuant to a California support order, cannot be compelled to work after the standard retirement age of 65 in order to continue paying support at the same level he/she had been paying prior to reaching said standard retirement age. In fact, according to the court in Reynolds, the act of retiring at the standard retirement age of 65, in and of itself, will usually be a material change of circumstances justifying a modification of support.

Of course, it is important to understand that retiring will not automatically result in a termination of spousal support. The court will weigh and consider all of the factors that impact family law. After doing so, the court will then determine whether the circumstances justify either the termination of support, or a reduction in the amount of support owed per month.

The court will consider the following key factors, among others, when deciding whether to modify a support order:

  • Length of the marriage
  • Marital standard of living
  • The lower-earning spouse’s marketable skills and earning capacity
  • The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living
  • The needs of each party based on the standard of living established during the marriage
  • The obligations and assets, including the separate property, of each party
  • Each party’s age and overall health

Note that individuals who opt to retire early (before the age of 65) may not be eligible for a modification on the basis of retirement.

Whether you can modify or terminate your existing obligation depends upon the unique circumstances and facts of your case. If you are nearing retirement and are seeking to modify or terminate your spousal support obligation, we invite you to contact Buncher Family Law to make an appointment with an Orange County divorce lawyer. We would be happy to discuss your case with you and advise you on how best to proceed.

Posted in Divorce, Modification, Support.