• Shawna Murray, Attorney

Can You Terminate Spousal Support When You Retire?

About a decade ago, after 20+ years of marriage, you were ordered to pay your former spouse a monthly spousal support payment for an indefinite period of time (or even a set number of years which has not expired). While it was sometimes a challenge, you made those payments each month. Now you are approaching your retirement years. You have crunched the numbers and know that once you retire, you will no longer be able to afford it. Are you going to be forced to continue working just to pay the spousal support? What can you do about it?

Once you are approaching your date of retirement, you are going to need to file a Request for Order in family law court where the original court order was issued. The Request for Order will be to request a Termination of Spousal Support. Until the judge signs a new order, you must keep making the payments. Unless your former spouse and you can come to an understanding about ending the support payments before the hearing, you will need to be prepared to show the judge that there has been (or soon will be) a material change in circumstances that will make it impossible for you to continue the support payments.

Bona-fide Retirement

The good news is that a spouse who is paying spousal support, the “supporting-spouse,” does not have to work indefinitely just to maintain the status quo for the “supported-spouse.” In 1998, a California Appellate Court ruled that “no one may be compelled to work after the usual retirement age of 65 in order to pay the same level of spousal support as when he was employed.” (Please see In re Marriage of Reynolds, 63 Cal.App.4th 1373, 1378). That sounds perfect, doesn’t it? Well, in law, nothing is easy, but this court decision will become part of the argument that you need to make to the court when you ask to terminate your current spousal support order.

The fact that you have reached the "usual retirement age” is important because the court is not going to allow you to terminate spousal support simply because you can retire early. No one would prevent you from retiring before 65 but that is not necessarily going to put an end to the spousal support payments. A exceptional argument where an early retirement could be reasonable is a situation where California law provides for retirement at a younger age. For example, California firefighters have a retirement age of 55 years old. (Please see In Marriage of Shimkus (2016) 1244 Cal.App. 4th 1262).

Material Change(s) in Circumstances

Assuming you can meet the retirement age issue, next you will also need to show that your new retirement income is (or is going to be) lower than the income that you earned while employed. Generally, this is the case with retired persons. You can show the court how much you will get from Social Security, any pensions, plus how much you can withdraw from any IRAs, etc.

If your former spouse has also reached retirement age and has an IRA that s/he can or is now withdrawing from (or will begin getting a pension or Social Security), this is also relevant to your argument. Your former spouse can supplement any lost spousal support payments with the IRA withdrawals. So, you can argue that these facts also support a material change of circumstances that warrant a change in the spousal support order. (Please see In Marriage of Schmir (2005) 134 Cal.App.4th 43.).

General Factors for Spousal Support

Besides examining the changes in income and whether the supporting-spouse has a “bona-fide retirement,” the court must consider the factors listed in the Family Law Code Section 4320. These are the factors the court initially reviewed when a final spousal support order was made during the divorce. (Please see In Marriage of Shimkus (2016) 1244 Cal.App. 4th 1262).

The list of factors in Family Law Code Section 4320 covers 13 topics and several of those have sub-topics. Any argument for a termination of spousal support is going to be incomplete without an analysis of those factors. Part of the analysis includes the age and health of each party, the duration of the marriage, and the supported-spouse’s own earnings. The assistance of an attorney with this detailed analysis is going to be very helpful for most parties.

Because of the required 4320 analysis, the court should be able to see the whole picture. Keep in mind that there are probably as many variations in these factors as there are divorces, so the ultimate decision made by the court will vary from case to case. There will be judges, after considering everything, who will allow for the termination of spousal support and others who will only modify it by reducing the amount paid.

If you are approaching retirement age and need to terminate or reduce the spousal support payments that you are making, let’s have a conversation. If you are the supported spouse and you are facing a loss of spousal support, you are also invited to contact Shawna Murray Law at 949-416-3575.

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