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Voluntary vs. involuntary retirement

Depending on the respective ages of yourself and your spouse when you separate, it’s wise for a payor of spousal support to consider including a provision in a separation agreement that allows him or her to retire at a certain age, particularly if they plan on taking early retirement, or retiring as soon as they are entitled to receive a full pension. Any retirement age less than 65 years (which would be considered to be a ‘normal’ retirement age) would probably require the consent of your ex if you are paying them long term, indefinite, spousal support.

Even without a prior agreement allowing a payor to take early retirement, a court can vary support when there is a material change in circumstances. While you cannot unilaterally withdraw from the workforce if your ex is dependent on you financially, if you’re in a physical job, or are being downsized, taking early retirement might not be considered completely voluntary. As such, a court might be more inclined to consider it legitimate and modify support payments accordingly.

Given the likelihood that many baby boomers will continue working past the age of 65, it’s an open question to what extent a court will consider terminating spousal support when people reach ‘normal’ retirement age- particularly if they are able to continue working (ie. they are still in good health and they have career opportunities).

The Ottawa family case of Nye. vs. Nye involved a payor who was 68 years old when he applied to reduce (not terminate) his spousal support obligations. He suffered from a variety of health issues, including diabetes, nerve damage to his arm from shingles, coronary artery disease and chronic leukemia. In light of these health issues, the judge felt that his decision to retire was a reasonable one, and he was entitled to a reduction in spousal support.

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