Retirement Not Automatically Stop Alimony in Colorado

Older couple embracing in a park.

Does Alimony Stop or Continue After Retirement? Colorado law provides that a retirement after reaching the social security retirement age (which is currently 67 for those born in 1960 or later) creates a “rebuttable presumption” that the retirement is in good faith. C.R.S. 14-10-122(2)(b). While this presumption definitely favors the payor, the payee still has the ability to try to rebut the presumption and argue that the decision to retire was made in bad faith.

One Colorado court recently went too far with this, and when the maintenance payor (who had reached the appropriate retirement age) filed a motion to terminate maintenance on the grounds that he was in poor health and planned to retire, the trial judge granted the motion and decided that alimony stopped upon retirement. But the judge did not give the payor’s former wife the opportunity to challenge the retirement at a hearing, or to argue for the continuation of alimony.

And worse, the court terminated maintenance based upon the retirement alone, without considering whether the parties’ financial circumstances warranted termination or the continuation of at least some alimony.

In Thorstad,1In re: Marriage of Thorstad, 2019 COA 13. the Court of Appeals reversed the trial court, finding that even a good faith retirement did not result in an automatic modification or termination of maintenance. Instead, the retirement would be the beginning of the following inquiry:

  1. Whether the decision to retire was in good faith, and
  2. If so, then the financial impact of that decision was just one of the factors the court is required to consider when determining whether there was a substantial and continuing change in circumstances sufficient to modify or terminate maintenance.

Thorstad.2In re: Marriage of Thorstad, 2019 COA 13, ¶ 43.

It is hard to conceive of a retirement after reaching the retirement age which would be deemed bad faith. The image which comes to mind is a stereotypical master criminal who reveals his entire plot to the hero – or a payor sending an email saying “I’m done. I’ve reached age 66, am retiring just to avoid paying you alimony.” Such a confession of bad faith seems pretty unlikely in the real world.

But even if good faith, in deciding whether to continue or stop alimony the court will consider both parties’ financial resources, including social security payments, monthly retirement pensions, IRAs and 401(k)s, other savings, the parties’ bills, etc. There simply is no hard & fast rule about what happens to alimony upon retirement.

What to do Before Retiring if Paying Alimony

If you are paying maintenance or child support and thinking of retiring, the two teaching points from this are:

  • Talk to a family law attorney about how best to proceed before you actually give notice to your employer, and before you let your ex know of the possible retirement.
  • Unless your separation agreement or decree explicitly ends maintenance upon retirement, don’t count on it necessarily ending – instead, you will need to be ready to prove why it should end, taking into consideration your retirement, as well as all other financial considerations.

And if you are the payee, the former spouse receiving alimony, do not assume that retirement necessarily ends the maintenance obligation. Instead, upon receiving notice, talk to an attorney about your options, and information that might be needed to assess the impact of retirement on the payment of maintenance.

More Information About Impact of Retirement on Alimony or Child Support

See the article Child Support & Alimony After Retirement in the Colorado Family Law Guide for a more in-depth discussion about the impact a retirement may have on the payment of child support or maintenance.

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