A payor of spousal support, Robert Cossette has recently found out that it’s not so easy to side- step spousal support obligations by taking early retirement. When he took early retirement from the government at the age of 55, and began receiving his pension, he hoped his reduction in income would constitute a “material change in circumstances”. He applied to the court to have his $1,000.00 a month spousal support payment to his ex-wife terminated on the basis that his pension income was almost one-half what his pre-retirement income had been.
Generally speaking, a material change in circumstances entitles you to have a spousal support obligation judicially reconsidered- so, it could be either reduced, or eliminated altogether. Involuntary job loss and deteriorating health which make you unable to work, are typical examples of what would qualify as a material change.
However, in Mr. Cossette’s case, his change in circumstances was voluntary, rather than something that was forced upon him. From the court’s perspective, this was an important distinction.
Although he claimed he suffered from depression, the judge found that Mr. Cossette had not produced credible evidence that this depression made him unable to continue working and, in fact, he had never applied for long term disability benefits. Effectively, the court concluded that his early retirement was a choice designed to evade his spousal support obligations. He was, effectively, voluntarily underemployed. Since he didn’t meet the threshold of a “material change”, the court declined to terminate Mr. Cossette’s spousal support payments.
As a caution to parties drafting consent order or separation agreements, consenting to indefinite spousal support means exactly that- indefinite. If you want spousal support to terminate as soon as you are able to take full retirement, then you should ask for this provision to be included in whatever agreement, or consent order, you’re negotiating.