Since the 2014 amendments to the alimony statute were enacted, we have seen this clutching at pearls and gnashing of teeth about what to do in long term (over 20 years) marriages when the payor is in her/his 60s. The amendment to the statutes established a bright line of 20 years for the entitlement to open durational alimony. Limited duration alimony was statutorily proscribed to “up to the length of the marriage. The statute also included a presumptive retirement age tied to Social Security which is now age 67 for most people.

That said, people did not know what to do in cases that would otherwise require open durational alimony but the payor is a few years off from the presumptive retirement age. Sometimes parties make deals that ends the alimony at retirement age, or alternatively ends alimony at when the payor retires, so long as it is after the retirement age. I have seen others where a payor has agreed to a date after retirement age in exchange for a fixed end date without the need to return to court.

Alternatively, if the parties cannot agree on an accommodation, then the parties are potentially buying a second litigation when the payor approaches retirement age and wants to retire at or after the presumptive retirement age.

What I have not seen, until now, is a court ordering limited duration alimony when open durational alimony would otherwise be required. I say until now, because on March 29, 2024, the case of Frey v. Frey, an unreported (non-precedential) opinion reversing the trial court’s award of a 4 year term of alimony after a 29 year marriage.

In this case, at the time of the decision in 2021 (after a case that was filed in 2017 and an 11 day trial that spanned 21 months), the payor was 62. The trial court noted that at the end of the term of alimony, “…defendant will reach his retirement age for social security purposes and may well decide to retire.” In rejecting this, the Appellate Division made clear that:

“This is not a basis for awarding limited duration alimony in a long-term marriage.

The Appellate Division went on to note that the alimony statute permits an award of alimony to be modified or terminated upon the prospective or actual retirement age of the payor. The Court further noted that reaching full retirement age comes with it a rebuttable presumption that alimony will terminate. That said, the Appellate judges pointed out that there was nothing in the record that evidenced that the payor was going to retire prior to reaching full retirement age. In fact, they noted the he had just started a business. Thus, the Court held:

“Thus, it was reversible error for the court to award limited durational alimony because
defendant “may” seek to retire in the future.

There were other interesting parts of the case that were reversed too (the amount of alimony, the division of debt, and counsel fees, to name a few) but the real take away from the case is that judges typically cannot set a term that is less than open durational absent evidence or testimony that retirement was imminent. Even in those cases, it could be reversible error if the term is not tied to actual retirement after the full retirement age (and even then, that could be problematic because courts should not make prospective rulings in most cases.)

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