People receiving spousal support in California tend to get a little nervous when an ex-spouse nears the age of retirement. This apprehension often occurs because a person's income and ability to pay support is usually substantially reduced after he or she retires, and under long-standing California law, the family court may not impute income to the supporting party based on his or her pre-retirement earnings.
However, recipients of spousal support should not despair, at least until there has been a complete analysis of their situation. There are scenarios, after all, where the pay or of spousal support will have to pay even after retirement. For example, the court will order support to be paid where the retired party has the ability to pay support based on his or her retirement income and assets, and the other party has the need for support. This usually happens when the party who receives support does not share in the other party's retirement benefits, which is often the case when the parties married later in life.
In a recent appellate court decision,* for example, a family court’s order that a retired man pay spousal support to his ex-wife was upheld. In that case, the man convinced his wife to retire at the same time he retired, so that the two of them could move to a new home located in the mountains. The man’s pension was his separate property (he earned it prior to marriage), which provided him with $10,000 a month in income. Conversely, his wife’s retirement income was meager in comparison.
Unfortunately, the marriage did not last, and the parties became embroiled in a contested divorce. During the trial the man argued he should not have to pay spousal support because his wife could return to her pre-retirement job which would provide her with enough money to support herself. The trial court disagreed, however, and ordered the man to pay his wife monthly spousal support. The basis for the court’s ruling was that once the wife reached the age of retirement, it became impermissible to ask her to return to work or to order her to look for work.
In summary, the family court may not impute income to the recipient of spousal support after retirement. The consequence of this ruling is that in certain cases, the spousal support order may turn out to be a lifetime obligation, which is definitely good news for recipients of spousal support, and sad news for those who have to continue paying after retirement.
In Re Marriage of Mclain