Is a payor of spousal support entitled to retire at the age of 62?

Ms. Walts relied on Bullock v. Bullock, supra. That case dealt directly with the question as to whether the payor husband’s withdrawal from the workforce at age sixty-two in the context of a twenty-three year marriage qualified as a material change in circumstances justifying a variation of spousal support. The court found that the husband had retired voluntarily when he still had the capacity to earn a significant income. It indicated at paras. 9 and 10 that “[t]he legal question for this case … is not whether …[the husband] should retire at age 62, but whether this personal choice should be viewed as a “material change in circumstances” for the purposes of payment of spousal support. In my view it should not.” The court reiterated at para. 13 that voluntary retirement at that age is not a basis for finding a material change in circumstances, and drew on a line of cases for the proposition that “[a] support payor cannot choose to be voluntarily underemployed, whether by retirement or otherwise, and thereby avoid his or her spousal support payment obligations …” The court also noted at paragraph 1: While every case must be looked at on the basis of the unique circumstances of the parties, as a general proposition, a payor of spousal support should make his or her retirement plans on the basis that support will continue until aggregate retirement savings can be expected to keep both former spouses at reasonable standards of living.

In Innes v. Innes, supra, the husband at age sixty-two and in the context of a twenty-six year marriage brought a motion to change based on his retirement. On the facts there, which included the voluntary nature of that retirement and that the husband had not taken into account his ongoing spousal support obligation in retiring, the court was not satisfied that he had established a material change in circumstances.