Hot Tips for Filing Prospective Retirement Applications in New Jersey Family Law Cases

By Alexandra M. Freed, Esq.

New Jersey’s alimony statute explicitly authorizes prospective retirement applications,
yet many practitioners miss critical opportunities to address retirement at the time of
divorce. This article provides essential strategies for effectively handling prospective
retirement relief under N.J.S.A. 2A:34-23(j).

Understanding the Statutory Framework
N.J.S.A. 2A:34-23(j) establishes a rebuttable presumption that alimony terminates
when the obligor reaches full Social Security retirement age (currently 67 for those
born in 1960 or later). The statute mandates prospective relief: “If the obligor intends
to retire but has not yet retired, the court shall establish the conditions under which the
modification or termination of alimony will be effective. The use of “shall” creates a
mandatory obligation for courts to address prospective retirement when properly
raised.

Key Case Law: Mulholland v. Sweigart
In Mulholland v. Sweigart, 2022 N.J. Super. Unpub. LEXIS 840, the Appellate Division
reversed a trial court that refused to consider an obligor’s prospective retirement. The
court emphasized that requiring actual completion of retirement before granting relief
ignores the Legislature’s clear intent by including the word “prospective” in the statute.
This case establishes that courts cannot impose a “wait until retirement” requirement.

Strategic Tips for Attorneys
Tip 1: Raise Prospective Retirement at Trial, Not Post-Judgment
Filing prospective retirement applications at the time of divorce avoids duplicative postjudgment
litigation. When your client is within 12-18 months of full retirement age,
include prospective retirement relief in your initial request for judgment. This approach:
• Provides certainty for both parties at the time of divorce
• Reduces litigation costs by addressing retirement proactively
• Allows the court to structure alimony with built-in termination dates
• Prevents obligees from arguing that circumstances changed post-judgment

Tip 2: Document Concrete Retirement Plans
Distinguish your case from Mueller v. Mueller, 446 N.J. Super. 582 (Ch. Div. 2016),
where the court found a request filed five years before retirement premature.
Strengthen your application with:
• Executed severance agreements establishing definitive retirement dates
• Evidence of involuntary retirement or business restructuring
• Documentation showing the client will actually be retired before reaching full
retirement age
• Timing within 12-18 months of full retirement age
Unlike early retirement cases requiring good faith analysis, applications tied to full
retirement age benefit from the statutory presumption favoring termination.

Tip 3: Emphasize That “Need” is Not a Statutory Factor
This is perhaps the most overlooked strategic point. N.J.S.A. 2A:34-23(j)(1) lists
eleven specific factors for evaluating retirement applications. Notably absent: the
obligee’s need or the obligor’s ability to pay.

While N.J.S.A. 2A:34-23(b)(1) explicitly lists “actual need and ability of the parties to
pay” as the first factor for initial alimony awards, the retirement statute intentionally
omits this consideration. Courts cannot expand the statutory list or import factors from
other provisions.

When opposing counsel argues that the obligee still “needs” support, respond that:
• The Legislature’s omission of “need” from the retirement factors is deliberate
and legally significant
• Allowing need alone to overcome the presumption would render the statutory
presumption meaningless
• Retirement creates mutual challenges for both parties—neither party bears a
disproportionate burden
• The court’s analysis must focus on the eleven statutory factors, not general
equity arguments

Tip 4: Leverage Substantial Equitable Distribution
The statutory factor addressing “assets of the parties at the time of the retirement
application” becomes critical when the marital estate includes substantial retirement
accounts. Attorneys can argue that:
• The obligee’s share of marital retirement assets represents the parties’ joint
retirement savings effort
• These assets were specifically accumulated and designated for retirement
purposes
• The obligee can access retirement accounts penalty-free after age 59.
• Continuing alimony would provide double retirement security at the obligor’s
expense
• Even conservative investment returns generate substantial supplemental
income

This distinguishes cases where obligees received inadequate resources from cases
where substantial assets enable financial independence.
Tip 5: Address the Obligee’s Social Security Benefits
Don’t overlook derivative Social Security benefits. When the obligee is over 62, they
can collect up to 50% of the obligor’s Social Security benefit. Attorneys can calculate
and present:
• The obligee’s derivative benefit amount (typically available through Social
Security estimates)
• Combined income from the obligee’s employment, derivative Social Security,
and potential investment income from distributed assets
• Comparison showing the obligee’s total resources versus the obligor’s limited
retirement income
This demonstrates that both parties face similar financial constraints in retirement,
supporting equal treatment rather than continued dependency.

Tip 6: Structure Bridge Alimony Strategically
When your client retires before reaching full retirement age, propose bridge alimony
that:
• Provides support from actual retirement date through full retirement age
• Reflects the obligor’s reduced but still substantial severance income
• Terminates automatically when the presumption for cessation takes effect
• Accounts for the obligor’s need to preserve severance funds for long-term
retirement security

This approach acknowledges temporary ability to pay while preserving the statutory
right to termination at full retirement age.

Analyzing the Statutory Factors
When drafting a brief in support of prospective retirement systematically address
each N.J.S.A. 2A:34-23(j)(1) factor. Examples of arguments related to each factor
are set forth below.

Ages of the Parties
Emphasize when both parties are at or near retirement age. A three-year age
difference demonstrates that both spouses are retirement-age peers, supporting equal
treatment rather than continued dependency.

Economic Dependency During Marriage
Acknowledge historical dependency but argue it has been adequately compensated
through equitable distribution. The 50/50 division of accumulated wealth addresses
the economic interdependency that existed during the marriage.

Duration and Amount of Alimony Already Paid
Calculate total pendente lite support (both direct payments and expense coverage)
plus any bridge alimony proposed. Present this as a substantial transition benefit that
facilitated the obligee’s adjustment.

Ability to Have Saved for Retirement
This factor strongly favors termination in initial divorce proceedings. Unlike postjudgment
modification cases evaluating whether a party had opportunity to save after
divorce, initial divorce cases involve division of the actual retirement savings
accumulated during the marriage. The obligee receives full credit for joint retirement
planning efforts through equitable distribution.

Common Mistakes to Avoid
• Waiting until post-judgment to raise retirement—missing the opportunity for
streamlined resolution at trial.
• Filing too early without concrete retirement plans—allowing courts to find the
application premature
• Failing to rebut need-based arguments with statutory factor analysis
• Overlooking derivative Social Security benefits in income calculations
• Inadequately documenting the client’s actual retirement plans and severance
terms (if applicable)
• Neglecting to emphasize the substantial equitable distribution as retirement
compensation

Conclusion
Prospective retirement applications represent an underutilized tool for achieving
efficient and equitable outcomes in long-term marriage cases. By raising retirement
issues at the time of divorce rather than through subsequent modification applications,
practitioners can provide their clients with certainty while avoiding duplicative litigation
costs.

The key is timing, preparation, and systematic application of the statutory factors.
When your client is within 12-18 months of full retirement age, has concrete retirement
plans, and the case involves substantial equitable distribution, prospective retirement
relief should be part of your initial trial strategy.

Remember: the Legislature created a distinct framework for retirement cases that
intentionally differs from initial alimony determinations. The statutory presumption
favoring termination at full retirement age reflects sound policy recognizing that
retirement fundamentally alters the alimony equation. Use this framework to your
client’s advantage.

i Ali is an attorney at SeidenFreed LLC in Pennington, NJ. She is a member of the NJSBA Family
Law Executive Committee and an Associate Editor of the New Jersey Family Lawyer.