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frankly, placed the potential retiree in a challenging position. If the supporting spouse was not already retired,
the application was deemed premature; if the supporting
spouse retired first, and then brought the application,
there was a risk the modification would be denied, leaving the supporting spouse without employment and with
a continuing support obligation.
Moreover, the standards for obtaining modification or
termination based upon retirement were weighted in favor
of the supported spouse, so much so that the idea of negotiating a fair terminal date for alimony came with a price.
Recall that then-Judge Virginia Long made the following
pronouncement when discussing an application for modification of alimony based upon voluntary, early retirement:
It goes without saying that issue of possible
voluntary early retirement and the like should
be resolved in the first instance at the time
of the divorce in a negotiated agreement. No
thoughtful matrimonial lawyer should leave an
issue of this importance to chance and subject
his or her client to lengthy future proceedings
such as we have here.26

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Yet, the standard for modification annunciated by
Judge Long in that same case made it nearly impossible
for “thoughtful matrimonial lawyers” to resolve this issue
without the supporting spouse ‘buying out’ the back-end
of an alimony term:
We have also concluded that, in the final
analysis, even in a case in which the retiring
spouse has been shown to have acted in good
faith and has advanced entirely rational reasons
for his or her actions, the trial judge will be
required to decide one pivotal issue: whether the
advantage to the retiring spouse substantially
outweighs the disadvantage to the payee spouse.
Only if that answer is affirmative, should the
retirement be viewed as a legitimate change in
circumstances warranting modification of a preexisting support obligation….
Where the interests are in equipoise, the
payor spouse’s application will fail because
he or she is unable to show that the advantage
substantially outweighs the disadvantage to the
payee….Where the sole problem is timing, the
trial judge may condition approval on a preparatory hiatus during which the movant may retire

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or not as he or she chooses but during which
the financial obligations will continue.27
In concluding, Judge Long famously stated:
This ruling should not be viewed as a
limitation on freedom of choice or freedom of
action. By it, the payor spouse whose good faith
early retirement or other life style change would
not deleteriously affect the former spouse is free
to follow his or her star. Where a significant
disadvantage to the payee spouse is foreseen,
the payor spouse is still not precluded from such
a change. Any party is free to retire, take a vow
of poverty, write poetry or hawk roses in an
airport, if he or she sees fit. The only limitation
is discontinuance of the financial aid the former
spouse requires. The reason for this is that the
duty of self-fulfillment must give way to the preexisting duty which runs between spouses who
have been in a marriage which has failed.28
On the issue of ‘voluntary’ retirement, another court
made the following observation:
Absent some tragedy or combination of
unfortunate circumstances, retirement from
further employment in the workforce is always
voluntary and foreseeable because, at some
point, every worker will eventually retire. Moreover, taken to its logical extreme, [a bar against
modification if the retirement is voluntary]
would force an obligor to work until physically
incapable of doing so merely to avoid the allegation that he or she was “voluntarily” avoiding
spousal obligations.29
Similarly, there are a number of careers where the
‘normal retirement age’ was always irrelevant. Police
officers, firefighters, teachers, Wall Streeters, construction
workers, none of these fields anticipate or expect to continue working until they reach full age for Social Security.
In response to these and other concerns,30 the statute
was amended to include provisions redefining the law of
retirement. One of the primary aims of the new law was