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to allow for ‘thoughtful matrimonial attorneys’ to begin
discussing a retirement date at the time of the agreement,
rather than ‘abiding the event.’ This is clear from the opening sentence in section j. and all the provisions that follow.
Initially, the new statute provides that alimony “may
be modified or terminated upon the prospective or actual
retirement of the obligor.”31 (emphasis added) The intent in
adding the word “prospective” to the statute is to address
the conundrum that existed for the supporting spouse;
that is, the supporting spouse could file an application in
anticipation of retirement without having to actually retire
prior to filing that application. For that person who has
not retired but intends to, the last paragraph of sections
j.(1) and j.(2) notes, “If the obligor intends to retire but
has not yet retired, the court shall establish the conditions
under which the modification or termination of alimony
will be effective.” In practice, this means that the teacher
who anticipates retiring at the end of a school year can file
the application and, if granted, a court can enter an order
that, for example, upon the payor’s retirement from teaching, alimony will be modified/terminated. To be clear, it
was not intended for applications that state, for example,
that the payor seeks to retire in 10 years and therefore is
seeking an order permitting same. Rather, the intent is
for retirement that is imminent, and the payor is seeking
court sanction for same in advance of same.
There are really three separate retirement provisions for three separate circumstances. Section j.(1) is for

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judgments or agreements that arose after Sept. 10, 2014.
Section j.(2) addresses what the court had previously
referred to as ‘early retirement,’ that is, retirement before
age 65. Section j.(3) is for judgments or agreements which
arose before Sept. 10, 2014.32
With regard to sections j.(1) and j.(3), prior to the
new statute a good faith retirement age was 65.33 However, the pronouncement regarding that age resulted from
case law that was more than two decades old. Additionally, achieving that age did not result in a termination of
alimony; rather, it merely allowed for a review of alimony
based upon the parties’ then existing circumstances (and,
again, only if the payor actually had retired).
Section j.(1) now provides that “there shall be a
rebuttable presumption that alimony shall terminate upon
the obligor spouse or partner attaining full retirement
age….” (emphasis added) While there is still a requirement that the payor retire upon achieving full retirement
age, and while a court can, in its discretion select a different termination date, and while there are a number of
factors a court can consider to overcome the rebuttable
presumption, this is a significant change from the prior
law. The clear intent is that payors have the right to retire
and be relieved of their obligations upon doing so.
As for the factors to overcome the presumption, or for
the court setting a different termination date, the focus is
primarily upon longer term marriages. This is clear from
some of the factors—the ages of the parties at the time
of the application (factor a), the degree and duration of
economic dependence (factor c), the duration and amount
of alimony already paid (factor e), and the ability of the
supported spouse to have saved adequately for retirement
(factor j). For example, in the case of a 30-year marriage
with a payor who is 63, without the ability to rebut the

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presumption (or, in the alternative, to request that the
court apply a different terminal date), the payor would
potentially be relieved of the alimony obligation in four
years. If, in fact, the presumption is overcome, then the
court, in determining whether to modify or terminate
alimony, would utilize the alimony factors in section b.34
Although there are dozens of other examples to
overcome the presumption, it cannot be ignored that
the overall intent of j.(1) was to allow for retirement, and
termination of an alimony obligation, upon reaching full
retirement age.35
With regard to N.J.S.A. 2A:34-23j(2), this section
addresses the standard for obtaining modification or
termination of alimony prior to an obligor achieving full
retirement age—or what has commonly been referred
to as ‘early retirement.’ As noted above, the preceding
standard for doing so was, “whether the advantage to the
retiring spouse substantially outweighs the disadvantage
to the payee spouse,”36 a nearly impossible standard to
meet. This section of the new law gives payors a realistic
opportunity to retire prior to achieving full retirement
age. Unlike the prior law, the focus is on both the payor’s
and the payee’s circumstances at the time.
Upon the filing of an application, there are eight
factors for the court to consider. For the payor, the
factors focus on the motivation of the payor (good faith
and reasonableness), the realities of certain careers and
employers, and the reasonable expectations of the parties
during the marriage.37 As for the reasonable expectations
during the marriage, there are a number of considerations. For example, teachers know the ‘25/55 rule’ (that
is, when a person has been teaching for 25 years, and