Permanent Alimony vs. Open Durational Alimony

The new alimony law that was recently passed on September 10, 2014, changed one of the types of alimony from “permanent” to “open durational.” It was really just a change in semantics. Permanent alimony was never meant to be “lifetime” alimony as many clients called it. Under our previous law, permanent alimony could have been modified upon a substantial change in circumstances, such as disability, unemployment, retirement, or a change in need by the payee or change in ability to pay by the payor. Open durational alimony, which has an open term until the court terminates it or the parties agree to terminate it, generally applies to marriages over 20 years in length. This type of alimony can also be modified (reduced or terminated) upon a substantial change in circumstances.

What the new law does give us is some guidance when dealing with substantial changes in circumstances. Prior to the new law’s enactment, we only had case law to help with modification applications.

For example, retirement is a substantial change in circumstance for which modification of alimony would have been considered under case law. Under the new alimony statute, there is a rebuttable presumption that alimony shall terminate upon the payor spouse obtaining full retirement age, which is Social Security retirement age. The law also provides that the court may set a different alimony termination date if the rebuttable presumption is overcome. The factors to consider in rebutting the presumption are as follows:

1. The ages of the parties at the time of the application for retirement.
2. The ages of the parties at the time of the marriage or civil union and their ages at the time of entry of the alimony award.
3. The degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union.
4. Whether the recipient has foregone or relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award.
5. The duration or amount of alimony already paid.
6. The health of the parties at the time of the retirement application.
7. Assets of the parties at the time of the retirement application.
8. Whether the recipient has reached full retirement age as defined in this section.
9. Sources of income, both earned and unearned, of the parties.
10. The ability of the recipient to have saved adequately for retirement.
11. Any other factors that the court may deem relevant.

If the paying spouse retires prior to attaining full retirement age, then he/she has the burden of demonstrating that the actual retirement is reasonable and made in good faith.

Other blogs have been posted to this site on the new alimony law and how it effects other changes in circumstances such as cohabitation and unemployment.