The Truth - the Winning Argument for Your Case

Does Retirement Affect Spousal Support?

Answers From Orange County Family Law Attorneys

DISCLAIMER: The following is not meant to be legal advice. It offers alternatives, tips, and resources for those with no means to hire an attorney. For a more thorough explanation of how spousal support is calculated, please review the applicable sections in the California Family Code.

Any major change in a supporting spouse’s income can have an effect on that spouse’s spousal support order. One such major change is retirement. It is important for both the supported spouse and the supporting spouse to understand how the retirement of the supporting spouse will affect their spousal support order.

Normal Retirement

For the purposes of spousal support determinations, "normal retirement” is retirement at age 65. Under the California Family Code, a supporting spouse cannot be forced to keep working past the age of 65. In addition, court cannot impute pre-retirement earning capacity to a retired supporting spouse over the age of 65. Instead, the supporting spouse’s retirement will be considered a material change of circumstances, making retired supporting spouse eligible for a modification in his or her spousal support obligation. The court’s rationale is made clear in In re Marriage of Reynolds (1998) 63 CA4th 1373: “Just as married couples may expect a reduction in income due to retirement, a divorced spouse cannot expect to receive the same high level of support after the supporting spouse retires.” {ld at 1379.}

It is important to note that s supporting spouse’s retirement does not automatically terminate a spousal support obligation. If the supporting spouse still has significant passive income (rents, dividends from stocks, etc.), and the supported spouse has the need, a support obligation may still exist. However, the supporting spouse cannot be forced to invade the principals of his or her investments. Only the income generated by the investments may be considered.

Early-retirement

“Early retirement”, in the context of determining spousal support, is any cessation of work, prior to the normal retirement age of 65. Unlike normal retirement, if the supporting spouse opts for early retirement, he or she may not be entitled to any reduction in his or her spousal support obligation. If a supporting spouse elects to take an early retirement, but the court determines that the opportunity and ability to work are still present, the court will impute the supporting spouse’s pre-retirement income to the supporting spouse for the purposes of determining spousal support. In other words, the court will treat the supporting spouse as earning the same level of income he or she earned prior to retirement, if he or she elects to retire before age 65.

Helpful Family Law Resources

Family law can be complex, but there are plenty of resources available to assist you. Browse through the various resources our team provides to help simplify your legal process in every way possible.

We Have the Answers You Need