A Spouse May Not be Compelled to Work Past the Usual Retirement Age of 65 to Pay Spousal Support Obligations that Were Ordered During the Supporting Spouse’s Employment

After the dissolution of a 37-year marriage between husband and wife, husband agreed to pay a monthly spousal support award of $5,500 for a three-year period, which was to be modified by a court order after the three-year term expired. At the time of the agreement husband earned $140,000 per year in addition to $12,000 of annual consulting fees. At the age of 66, husband underwent leg surgery and was then fired from his job. Upon losing his job, husband’s divorce lawyer filed a motion to terminate spousal support to wife based on a change in circumstances. The divorce trial court denied husband’s motion due to outdated financial information. Husband’s divorce lawyer filed a subsequent motion declaring his net income as $347.92 per month, in addition to a declaration stating that husband was retiring because he was unsuccessful in finding other employment. The divorce court reduced the spousal support order to $3,500 per month. Husband’s divorce lawyer filed a timely appeal in response.

The Court explained that a divorce court has broad discretion in determining a spousal support order but must consider (1) a material change in circumstances existing at the time the order is made and (2) a consideration of the needs of both parties and their abilities to meet those needs. The Court stated that the key issue for dispute is, whether husband had actually retired from employment, whether or not a divorce court could attribute monthly income based on husband’s ability to earn rather than his actual earnings, which would consequently cause husband to work past the accepted age of retirement. The Court determined a divorce court could not impute such income to husband and thus was not able to compel husband to work past the age of retirement.

The Court determined that no facts in the record supported the divorce court’s finding that husband made $5,000 monthly. Further, wife’s divorce lawyer did not submit evidence of husband’s earning capacity and a divorce court may only impute income where there is evidence of ability, opportunity, and willingness to working. The Court held that no individual may be compelled to work after the retirement age of 65 in order to pay the same spousal support obligation as when they were employed. Thus, the Court held that the divorce court abused its discretion by imputing income to husband and making a spousal support order of $3,500. The Court ruled in favor of husband’s divorce lawyer and reversed the divorce court’s decision.

In re Marriage of Reynolds (1998) 63 Cal. App. 4th 1373