Voluntary Early Retirement as a Factor in Modifying Maintenance

• Publication year: 1996
• Pages: 43

25 Colo.Law. 43 Colorado Lawyer 1996.

1996, April, Pg. 43. Voluntary Early Retirement as a Factor in Modifying Maintenance

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Vol. 25, No. 4, Pg. 43

Voluntary Early Retirement as a Factor in Modifying Maintenance

by Richard I. Zuber

Aheadline in the New York Daily Law Journal reads, "Retiree Told To Pay Alimony Or Get A Job."(fn1) A like, but very different, headline appeared in the Los Angeles Daily Journal, "Man Ends Spousal Support By Entering Monastery."(fn2) In both cases, maintenance obligors had sought to modify or terminate their maintenance obligations by reason of their voluntary early retirement, with markedly different results

On June 2, 1996, twenty-five years will have elapsed since the Uniform Dissolution of Marriage Act ("UDMA")(fn3) first became law in Colorado. Despite this passage of time, family law practitioners in Colorado face uncertainty on the result that will follow when a court addresses the issue of whether voluntary early retirement constitutes a substantial change of circumstance warranting a modification or termination of a spouse's maintenance obligation. This article attempts to explain the source of the uncertainty, why it continues to exist and how this issue may be resolved.

Two Illustrative Approaches

Illustrative of the approaches at least two other jurisdictions have taken when confronted with the voluntary early retirement issue are the cases behind the above headlines.

In the New York case, the judge framed the issue in terms of a legal duty analysis:

Can a former husband voluntarily retire at age 57 resulting in a substantial reduction in his income, marry a woman who does not work and has no income, voluntarily move to a county which he describes as having the highest unemployment rate in New York State, refuse to seek any type of employment and as a result of his actions, obtain a downward modification or elimination of his support obligations to his former wife . . .?(fn4)

Applying New York law, the court held

[T]he supporting spouse has an affirmative duty to avoid a loss of income and failing such duty the loss of income cannot serve as a basis for downward modification. . . . The fact that a husband does not work does not mean he cannot work. The measure of ability to support is not based upon what an irresponsible husband designs to earn, but his potential ability to earn in light of his past experience.(fn5)

California, a state of sunshine and retirees, focused instead on the obligor's motive. In the California case, the trial court found that the monastic husband had not quit his job to avoid spousal support payments and that the husband's voluntary vows of poverty were sincere and in good faith. This finding of good faith was made despite unrebutted evidence at permanent orders that the husband had threatened to quit his job unless his wife agreed to forego spousal support.(fn6)

While the foregoing New York and California cases are illustrative, they are not necessarily instructive as to the modification approach likely to be followed in Colorado courts when considering an early retirement case.(fn7) At present, due to the absence of definitive case law and statutory guidance, a Colorado family law practitioner will be hard pressed to answer a client's inquiry: "At what age can I retire or substantially reduce my working hours and have a reasonable certainty that a court will modify or terminate my maintenance obligation?"

Colorado's Maintenance Statute

As distinguished from Colorado's child support statute, Colorado's maintenance statute does not provide the client or counsel with any guidance as to the duration measured in years for an original maintenance order.(fn8) In contrast to jurisdictions that have adopted somewhat dissimilar versions of the Uniform Marriage and Divorce Act ("UMDA"), in Colorado, an obligor spouse's age is not a stated statutory factor for a court to consider in deciding the duration of a maintenance award. Further, the legislatures of these other UMDA jurisdictions have, by amendment, added additional duration factors for a court to consider in regard to fixing, modifying or terminating a maintenance order when a spouse is at or near retirement age.(fn9) In light of the fact that a customary purpose of a uniform law is to have a uniformity of interpretation, a Colorado practitioner may be able to ask a court to construe (as to the early retirement issue) this state's maintenance and modification statutes in a manner consistent with these other jurisdictions.

Colorado's maintenance statute provides inter alia that "the maintenance order shall be in such amounts and for such periods of time as the courts deem 'just'. . . after considering all relevant factors. . . ."

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Other than the subjective equity analysis of a particular judge, which lends itself to a lack of uniformity of decision, the only statutory factor that could be relied on by a Colorado court in having an original order terminate at retirement age is "the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance."(fn10)

A review of the Colorado...