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.
Understanding Spousal Support After Retirement in California
It should be noted that spousal support recipients are not completely shut out from support payments, even after the ex-spouse's retirement. There may be a court order for the retired ex-spouse to continue paying spousal support based on retirement income or assets, if the receiving spouse still shows need for support. This can happen when the receiving spouse does not receive anything from their ex-spouse's retirement benefits, such as when a couple marries 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
