Spousal Support When You Are Over 65

My spouse wants to retire. Can I force them to continue working in order to receive the same amount of support? This is the question that was asked in Marriage of Reynolds (1998) Cal.App.4th 1373. In this case, the husband retired from active employment and the trial court attributed to him a monthly income based on his ability to earn rather than his actual earnings.

It is well-established law that a supporting spouse cannot deliberately refuse to work. Philbin v Philbin (1971) 19 Cal.App.3d 115 The courts have also held that a supporting spouse cannot prematurely retire in order to avoid paying spousal support. Marriage of Sinks, 204 Cal.App.3d 592; Marriage of Stephenson, 39 Cal.App.4th 78.

But in the instance of a bona fide retirement (i.e. retiring at 65 years old or older), a supporting spouse should not be forced to continue working. Just as a married couple may expect a reduction in income due to retirement, a divorced spouse cannot expect to receive the same high level of support after the spouse retires. As a general rule, the family law courts in California will not force a supporting spouse at 65 or over to return to the workforce from retirement just to pay the same level of support as before entering retirement.

However, age is not the only factor in determining spousal support. In fact, the spousal support statute (Family Code Section 4320) includes 14 distinct factors of which all relevant factors must be analyzed by a family law judge called upon to determine spousal support. Therefore, if the supporting spouse is 65 or over and retiring or retired, the other factors under 4320 must be emphasized in order to adequately receive the support needed for the other spouse.

The Reynolds decision has been a core tenet relating to aging support payors and recipients, in terms of alimony rights and obligations. But as I pointed out, subsection (h) of section 4320 requires the trial courts to consider the “age and health of the parties” and subsection (l) the relative circumstances of the parties. Subsection (l) also gives trial courts discretion to address “any factors the determines are just and equitable.”

As pointed out in the Reynolds case, there is a tension between the above-referenced subparts of 4320 and the public policy goal that support spouses become self-supporting. The noted cases along with others guide the analysis of each case. Of course, the result is strongly guided by the specific facts of each case.

It is a complex area of spousal support and requires legal and factual reasoning for the trial court for either side. If you want efficient and effective legal representation, contact my office by email [email protected] or call me at 310-601-7144.

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