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NJ Alimony Law: When to File a Motion to Modify Alimony Based on Retirement

In 2014 the New Jersey legislature amended the statutes that relate to alimony. Prior to the amendments, a person paying alimony had to actually retire before he or she could ask the court to modify the alimony. That made it difficult for the person paying alimony to plan for his or her post-retirement finances. Under the amended law, the payor can seek an order modifying or terminating the alimony order based on a plan to retire before actually retiring–allowing the prospective retiree to better plan for the future.

The New Jersey Superior Court addressed the issue of when a motion to modify alimony is timely based on prospective retirement in the April 2016 case of Mueller v. Mueller. In Mueller, the parties were married for 20 years before they divorced in 2006. Thereafter, Gordon Mueller paid Rosemary Mueller $300 per week in alimony, the amount agreed upon in the parties matrimonial settlement agreement. Gordon sought a court order that says that his alimony obligation will terminate upon his retirement under the new law. Gordon was 57 at the time he sought the court order, and planned to retire in 5 years when he was 62 years old.

As a threshold matter, the court discussed that the agreement was entered into well before the amendment. The court found that this case fell under N.J.S.A. 2A:34-23(j)(3), which covers alimony agreements that were entered into before the effective date of the amended statute, which is September 10, 2014. The age at which Gordon planned to retire was 62, which is not  the “full retirement age” defined by the Social Security Act, so the case would be covered by the section of the statute that deals with early retirement. Once determining that the statute applied to this case, the court could consider the factors listed in the statute in order to determine if it would be equitable for the alimony to be modified or terminated.

Ultimately, the judge in the Mueller case held that the court may order a prospective change in alimony when: 1) the prospective retirement will take place in the near future, rather than in many years, and 2) there is a specifically detailed proposed plan for actual retirement, rather than a general desire to retire someday. The court said that the detailed plan could include proposed date of retirement and the financial details for self-support following retirement.

Based on the requirements above, the court found that Gordon’s application to terminate alimony in five years was “simply too far in advance of the event for the court to reasonably analyze and consider at this time” because it required too much speculation so that the court can not make an effective determination of whether termination of alimony is warranted. While the court did not say precisely when such a motion would be timely, it did say that it would be “far more suitable for thorough analysis and consideration if brought, for example, approximately twelve to eighteen months before his prospective early retirement.”

If you are in need of legal assistance with alimony, please call the Law Offices of Peter Van Aulen for a free initial consultation.


Mueller v. Mueller, CIVIL ACTION DOCKET No FM-15-619-05

N.J.S.A. 2A-34-23(j)(1-3)

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