Retirement and the Obligation to Pay Maintenance

Congratulations! Your dream of retiring is about to become a reality. You’ve worked hard your whole life. Sure, the divorce set you back financially, but it was years ago.  You have prudently saved and invested your money.  It wasn’t easy to do, especially having to write that maintenance (alimony) check to the ex each month.  Wouldn’t it be nice to finally cash out and spend that money traveling the world or vacationing? The bags are packed, and the tickets have already been paid for. You’ll want to send a postcard to your loved ones from where ever you are.  Before you take flight, however, you may want to re-read your judgment for dissolution of marriage.

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Upon reading it, you snap out of your dream and you realize that your support obligation remains in full force and effect. Your maintenance obligation doesn’t automatically terminate upon your retirement. Sweat begins to form at your brow, nervousness comes over you, and panic sets in. However, you can rest easy, because Illinois law affords you some relief.

 

Section 510 of the Illinois Marriage and Dissolution of Marriage Act provides that spousal support may be modified or terminated only upon a showing of a substantial change in circumstances.  A substantial change in circumstance may include any change in employment status, such as retirement, as well as the increase or decrease in each party’s income since the entry of the judgment.  As has been discussed previously in this Blog, the question of whether the change has been made in good faith is almost always pertinent.

 

When it comes to the question of whether there has been a substantial change in circumstances, Illinois Courts have viewed retirement skeptically.  For example, in the case of Marriage of Waller, the court denied a motion to modify maintenance because the petitioning party retired at age 63, which was prior to reaching the “customary retirement age.”  The court in Waller also noted that the husband had an opportunity to continue working for the same company, but chose to retire instead.

 

Similarly, the requirement of a substantial change in circumstances implies more than just a mere expectation of retirement.   One must actually be retired in order for the court to consider retired status as a basis for modification or termination of maintenance.

 

Merely retiring at “retirement age” is not enough.  In order to determine whether your decision to retire was made in good faith, the court will consider certain relevant factors such as age, health, and motives for retirement, as well as the ability to continue to pay spousal support after retirement. Additionally, a party seeking to terminate maintenance should be prepared to answer questions such as, “are you ready to retire by being financially sound or are your basing your decision on unrealistic financial circumstances rather than reality,” or “do you need to continue to work to support yourself and your former spouse in order survive, rather than retire and live in destitute?”  The party seeking modification will bear the burden of proof, and should be prepared to present documents such as bank and investment account statements, proof of income, social security benefits, and evidence of expenses and obligations.  The case of Marriage of Smith is illustrative of these concepts.

 

Establishing “good faith” is not necessarily the end of the analysis.  A court may still require a retired, financially well-to-do spouse to continue to support a destitute former spouse.  For example, in the case of Marriage of Schrimpf, the court denied a retiree’s request to terminate maintenance where the parties had been married for 26 years, the ex-husband had substantial assets with which to pay maintenance, and he could easily afford his monthly maintenance obligation.  In contrast, the ex-wife was 70 years old, in debt, and living off a small monthly social security check.

 

On the other hand, if recipient spouse is in a better position financially, the maintenance obligation will likely be terminated. For example, in the case of Marriage of Kocher, the ex-husband’s maintenance obligation was terminated after he retired, but his ex-wife was still working full time.  Her monthly income was greater than his, and the court saw no reason to require him to continue to pay.

 

All factors considered, your decision to retire should be a thoughtful one, as each case is uniquely different. When faced with the decision to retire or not, consult a professional by contacting our office to ascertain how the law might apply to the facts of your case.