Divorced Husband Allowed to Stop Paying Alimony/Spousal Support

How long does someone who has been ordered to pay alimony/spousal support have to keep paying it? It depends on the circumstances, but we do know that spousal support ends when the payor dies, the recipient dies, or the payee remarries, whichever occurs first (although if there’s a written agreement, the parties can agree that spousal support does not end just because the recipient remarries).

In many cases in California, particularly cases where the marriage has been over ten years, a judgment will state that spousal support ends upon “further court order, the payor’s death, the recipient’s death, or the recipient’s remarriage, whichever first occurs”. When words to this effect are used, the person who is coughing up the big bucks may return to court after the divorce case is over and ask for a reduction or termination of alimony/spousal support based on a change of circumstances.

One change of circumstances is retirement. California law, for at least 15 years or so, has indicated that if a person reaches what has been the typical retirement age of 65, it is not necessary to keep working just to pay spousal support. Accordingly, if a person is 65 or older and has actually stopped working, a court may terminate spousal support.

People are now living longer (and maybe even working longer), but a new case says it is permissible to treat a younger person, indeed a 55 year old person who has retired, the same as a 65 year old who has retired if it is customary for the people in the individual’s profession to retire at age 55.

This new case, Marriage of Shimkus, was a unanimous decision of three justices from Division Three of the Fourth Appellate District of California’s Court of Appeal. The small print is that while the appeals court said the trial judge was correct in deciding that the 55 year old had the right to retire, the judge was wrong for reducing spousal support from $3,000 per month to zero without looking at all of the other factors under Family Code section 4320, which is the statute in California that governs spousal support.

In Shimkus, the husband was a firefighter. The Court of Appeal noted that, based on certain codes and regulations, “the ‘normal retirement age’ of a firefighter is 55”. The court continued, “[w]e conclude Jeff did not retire early. Although 65 is the common generally accepted normal retirement age . . . 55 is the ‘normal retirement age’ for a firefighter. As a result, we conclude Jeff is subject to the rules applying to those who retire at 65.”

Indeed, it looks like Jeff went beyond age 55 and was actually 61 when he retired after 31 years as a firefighter. In 2011, when the parties got divorced and the original $3,000 spousal support order was made, Jeff had gross income of $9,442 a month and his wife, Kim, had gross earnings of $1,143.00 a month. It is also important to note that the parties had been married for almost 22 years before they separated.

But all of that changed just two years later, in 2013, when Jeff filed his motion to terminate spousal support based on the change of circumstances, namely his impending retirement. It appears the motion on the hearing was in 2014. By this time, Jeff’s income was down to $7,861 a month (in pension payments). Kim’s income had increased $3,691.00 from her share of the pension. In the court’s ruling, support was terminated retroactive to January 1, 2014.

The case, as stated above, though, is a little more complicated. Not only had Jeff retired, but Kim was now receiving some of his pension because of the divorce judgment and the fact that California is a community property state. Still, the judgment was reversed because the judge did not recognize and apply each applicable statutory factor in setting spousal support. Indeed, the appeals court said that while Jeff’s reaching the age of 55 and retiring as a firefighter could be grounds for terminating spousal support, it also noted “the mere fact that Jeff retired does not ipso facto require modification or termination of his spousal support. As stated above, the court must consider all of the applicable section 4320 factors”. (Emphasis added.)

Spousal support, which is tax deductible to the payor and taxable to the recipient (unless the parties agree in writing otherwise), is tricky business. A spouse or ex-spouse receiving spousal support cannot count on it forever. As has been held previously, when a person reaches retirement age, that person is entitled to retire instead of having to work just to be able to pay spousal support. It does not matter if the person could make a fortune by continuing to work. If a person deliberately quits at retirement age just to spite the opposing party, there’s not much a court can do other than maybe looking at other sources of income.

On the other hand, if a person decides to keep working well past the time when retirement is typical, the working person is not going to get away with arguing that he or she is only working because of a desire to work as opposed to a need. In short, if the person works, the income must be counted.

Getting back to the facts of Shimkus, if a person retires at retirement age (whatever that might be for the profession), he or she may still have to pay spousal support if there is passive income (such as rental income) that still creates a disparity of revenue between the parties; or if there are other reasons under Family Code section 4320 to keep spousal support going. Indeed, a person may decide to retire only because there are other sources of income rather than because of boredom or fatigue with the job. In other words, although some people will quit just to “punish” the other side, most people do not wish to deliberately put themselves in poverty, and therefore, if they do retire, it’s because it makes economic sense.

The Shimkus case was cited for precedent, which means it can be cited by trial courts and lawyers throughout California and is binding precedent on those courts. The case was decided by the Court of Appeal’s branch in Santa Ana.

The Shimkus opinion was written by Associate Justice David A. Thompson. He was joined by Justices William Bedsworth and Richard Aronson. The trial judge, based in Orange County, was the Hon. Salvador Sarmiento.