If you got divorced before you and/or your spouse retired, you may be surprised to discover that generally, retirement does not change the amount of spousal support with a few exceptions. This may mean that if you are the payor you have to work more years or find other ways to meet your obligations.
In New York, spousal support is determined according to a statutory formula, although there is still room for negotiation if your spouse is willing to negotiate. Importantly, as a general rule, spousal support does not change after retirement unless you negotiate that right. Your marital settlement agreement can include a provision that allows for the recalculation of spousal support once the payor spouse retires. This should be part of settlement discussions particularly if there is likely to be a significant drop in income in retirement.
You may be able to reduce support payments with a post-judgment modification of the spousal support award. Change in income is a common reason that parties seek modification. However, in order to be granted modification, there must be some significant changes in a party’s personal or financial circumstances which, generally speaking, are not caused by the party seeking modification.
The standard for modifying support takes into account several factors that can make it challenging to argue for a reduction in support payments in the context of retirement. The difficulty in qualifying for modification is that the payor spouse typically has some control over when he or she retires. However, if that is not the case, the payor spouse has a stronger argument. Two examples include where the payor spouse has a job that is subject to mandatory retirement or if the nature of his or her job is such that it would be difficult to continue physically. Modification is also more likely to be granted if the payor is well above retirement age or there are other personal, health or financial issues.
While you may have less income now that you have retired, that does not remove your obligations under a divorce decree. If you cannot afford to pay support, contact us to discuss whether you qualify for post-judgment modification.