Law Lessons from KASSIN v. KASSIN, App. Div. (A-1599-07T2, Decided September 23, 2008):

Alimony and child support orders are subject to modification upon a showing of “changed circumstances.” Lepis v. Lepis, 83 N.J. 139, 152 (1980). However, the party seeking such modification bears the burden of demonstrating such changed circumstances, id. at 157, and significantly, a decrease in income resulting from retirement does not necessarily justify a modification of support. Lissner v. Marburger, 394 N.J. Super. 393, 399 (Ch. Div. 2007).

The issue of voluntary retirement as constituting a change in circumstances warranting relief from support obligations was addressed in Silvan v. Sylvan, 267 N.J. Super. 578 (App. Div. 1993)(concluding that a good faith retirement at age 65 may warrant a finding of changed circumstances); and Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992 (establishing the standards to be applied when a party asserts an early retirement as changed circumstances warranting termination of spousal support). See also, Lissner, supra, 394 N.J. Super. at 403-04 (distinguishing between termination of alimony and child support where the basis of changed circumstances was a voluntary early retirement).

In Silvan, the court established a series of factors to be considered when a party retires at age 65 and subsists on social security benefits, relying on these facts to assert “changed circumstances” warranting relief. The court said, in part:

There are a variety of factors which should be considered in analyzing whether such changed circumstances do, in fact, exist as would justify a modification of alimony. A court may consider, for instance, the age gap between the parties; whether at the time of the initial alimony award any attention was given by the parties to the possibility of future retirement; whether the particular retirement was mandatory or voluntary; whether the particular retirement occurred earlier than might have been anticipated at the time alimony was awarded; and the financial impact of that retirement upon the respective financial positions of the parties. It should also assess the motivation which led to the decision to retire, i.e., was it reasonable under all the circumstances or motivated primarily by a desire to reduce the alimony of a former spouse. . . .

[Silvan, supra, 267 N.J. Super. 578 at 581.]

These factors were “meant to be illustrative, not exhaustive.” Ibid. Ultimately, the relevant considerations will depend on the circumstances presented in each particular case. Deegan, supra, 254 N.J. Super. at 358.

However, although age sixty-five is the foreseeable retirement age, “[i]t is reasonable to conclude that a person who decides to become a parent late in life voluntarily takes on the responsibility of working and saving for that child beyond the age that would otherwise be expected.” Lissner, supra, 394 N.J. Super. at 403.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Technorati Tags: changed-circumstances, child-support, child-support-modification, retirement, and easy technorati tags for wordpress plugin