Gary and Pixie Armendariz were divorced in 2005. Pixie was awarded alimony and an equitable share of Gary’s retirement.

In 2015 Gary took early retirement from his job as an aircraft mechanic at Hill Air Force base. He was sixty-one years old at the time. He claimed that injuries caused him too much pain to continue working. He had been in a car accident in 1998 in which he had broken all of the metatarsal bones in his foot. He had suffered torn rotator cuffs in both shoulders, for which he underwent surgeries in 2011 and 2015. He contended that it was simply too painful for him to continue working.

The divorce decree set forth three events that would terminate alimony: 1) Pixie’s remarriage, 2) Pixie’s entering into a cohabitation relationship with a member of either sex, and 3) her death. It did not mention anything about Gary’s retirement being a triggering event to terminate alimony.

After his early retirement, Gary petitioned the court for termination of his alimony obligation. An alimony award may be reopened if there has been a substantial material change of circumstances not foreseeable at the time of the divorce.

Following a trial, the district court denied Gary’s petition, ruling that his retirement was foreseeable at the time of the divorce and that his early retirement was voluntary. He appealed the decision.

The Utah Court of Appeals affirmed the district court’s decision, noting that the divorce decree itself was evidence that Gary’s retirement was a foreseeable circumstance since it awarded Pixie an equitable portion of Gary’s retirement account.

The Court noted the recent case of McDonald v. McDonald, 2017 UT App 136 in which the “foreseeable” standard was elucidated, first by the Court of Appeals, and then by the Utah Supreme Court. The statutory standard of “foreseeable”, enacted in a 1995 amendment to the Utah Code, is different from the prior judicially created standard of “foreseen” or “contemplated in the decree” for determining whether an alimony award may be reopened.

Whether a substantial change of circumstances was foreseeable is determined by a review of the information entered into the record in the trial court.

The Court noted, however, that a party’s retirement and or receipt of a spousal share of retirement benefits may constitute grounds to reduce or terminate alimony, based on either the recipient’s reduced or eliminated need for alimony or the payor’s diminished income and ability to pay.

The concurring opinion in this case was very instructive as to best practices for courts and attorneys when determining alimony. It will almost always be foreseeable that a party will retire and therefore, it should be “baked into” (my phrase) an alimony award that there will be some change in alimony upon a party’s foreseeable retirement.

See Armendariz v. Armendariz, 2018 UT App. 175.

This material should not be construed as legal advice for any particular fact situation but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.