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Retirement: Three Standards of Review

In the recently published case of Landers v. Landers, the Appellate Division clarified application of the newly enacted alimony statute amendments, addressing modification of alimony when an obligor retires under N.J.S.A. 2A:34-23(j).

Prior to recent amendments to the alimony statute on September 10, 2014, a party who sought a modification to their alimony obligation, had to demonstrate that changed circumstances have substantially impaired their ability to provide support in accordance with applicable case law. The 2014 amendments under N.J.S.A. 2A:34-23 added a new subsection (j), which specifically lists objective considerations a Judge must examine and weigh when reviewing an obligor's request to modify or terminate alimony upon retirement when an obligor retires.

The newly enacted provisions state, in pertinent part, that alimony may be modified or terminated upon the prospective or actual retirement of the obligor. However, N.J.S.A. 2A:34-23(j) provides three (3) different standards of review for making a determination as to modification or termination based upon the effective date of the initial alimony obligation and the circumstances resulting in the retirement application:

1. Circumstances when an obligor seeks to retire upon attaining "full retirement age" as defined in the statute. N.J.S.A. 2A:34-23(j)(1).

2. Circumstances when an obligor "seeks to retire prior to attaining the full retirement age" as defined in the statute. N.J.S.A. 2A:34-23(j)(2).

3. Circumstances when a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of the Statute. N.J.S.A. 2A:34-23(j)(3).

Unlike other amended provisions of N.J.S.A. 2A:34-23, Subsection (j) distinguishes alimony orders executed prior to the statutory amendment's effective date and those executed afterwards. Therefore, the Court must first examine when alimony was originally awarded.

In Landers, the Court did not make this distinction. A Final Judgment of Divorce was filed on June 24, 1991. Among the provisions in the Final Judgment of Divorce, the Husband was ordered to pay alimony to the Wife. Following the Husband's 66th birthday, he moved to terminate his alimony obligation, which lasted for 24 years. The Family Part Judge concluded the Wife failed to overcome the presumption that alimony terminates when an obligor attends full retirement age and granted the Husband's application.

The Wife argued the trial judge incorrectly applied (j)(1), rather than subsection (j)(3) which governs review of final alimony awards established prior to the effective date of the statutory amendments. The Appellate Division agreed and found that the trial Court could not ignore that the Husband's retirement application sought to modify an alimony order established prior to the effective date of the statutory amendments and should have reviewed the Husband's application pursuant to the factors listed under (j)(3) as opposed to (j)(1). As a result, the Appellate Division reversed and remanded the decision for further review.

As the Alimony Statute was amended in September 2014, the majority of cases coming before the Court with respect to retirement are based upon Orders entered prior to the effective date of the Statute. Accordingly, both attorneys and the Court must carefully review the circumstances in which the obligor comes to the Court seeking a modification on the basis of retirement as the standards of review and burden of proof are substantially different.

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