By Daniel Exner
Divorce Lawyer, Cordell & Cordell
This is because, depending on the court, there may be an issue with the reduction of income as your retirement may be viewed as voluntary and unreasonable, thus amounting to "shirking."
Before the court grants the modification, however, it will assess whether your retirement amounts to shirking.
A party "shirks" when he or she avoids his or her duties to another person. In terms of retirement, the court will likely weigh whether your retirement is the result of a long and natural work history or an attempt to avoid paying maintenance.
Your health and physical limitations will certainly be relevant in the court’s analysis of whether it is reasonable for you to reduce your earnings at this time. You will want to collect documentation including medical records to support your claim.
In Wisconsin where I practice, maintenance (or alimony as it's more commonly known) is the amount of money the court may order one ex-spouse to pay the other following divorce.
Courts may order maintenance after considering a number of factors, including: (1) the length of the marriage; (2) the age and physical health of the parties; (3) property division; (4) earning capacities; (5) contributions to the marital estate; and (6) the ability for the party seeking maintenance to become self-supporting.
Maintenance orders are always modifiable. To qualify for a modification, the moving party must demonstrate that there has been a substantial change in circumstances since the last order.
A substantial change in circumstances can include a significant increase or decrease in income or expenses for either party. To modify maintenance, a party must file a motion with the court.
An impending retirement, and reduction in income, may constitute a substantial change in circumstances warranting an alimony modification, but again, you will need to prove your retirement is not just to shirk your alimony responsibilities.
Please be aware that most states' statutes outline situations when alimony would automatically terminate. The remarriage of the party receiving maintenance results in an automatic termination of maintenance, though in Wisconsin the statute does not identify retirement of the payor as a reason for automatic termination.
However, the court could analyze the respective incomes of the parties and determine it would be appropriate at that time to terminate alimony.
The Court also has the option to hold open support (meaning it will be set at zero at this time but either party can ask for a modification later if the situation changes) or it could choose to modify the amount of maintenance but continue the obligation.
Every state has different laws concerning alimony that's why it is important to consult with an experienced mens divorce lawyer in your area to find the applicable alimony laws as they apply in your state.
Cordell & Cordell has mens divorce lawyers located nationwide. To schedule an appointment with one, including Daniel Exner, a Staff Attorney in the Milwaukee, Wisconsin, office, please contact Cordell & Cordell.