Paying Alimony? Thinking of Retiring? Better Think Twice!

written by Jim Duzak |

Of all the issues in divorce cases , alimony is typically the most polarizing, more so even than child custody. If a husband is ordered to pay alimony, I guarantee you he insists he’s paying way too much, or that he shouldn’t have to pay at all. If a wife isn’t awarded alimony, she’ll be screaming that her husband will be living a life of luxury and she’ll be on food stamps. And if a wife is ordered to pay alimony to the husband—it’s rare, but it happens—she’s telling everyone she knows what a leech and a loser he is.

The truth is there aren’t many alimony decisions that are completely fair. Most of the time, one person gets either too much or too little, or the alimony period goes on too long or stops too soon.

And then there are those cases that seem fair in the beginning, but seem a lot less fair later on. Case in point: Rudolph Pierce of Massachusetts and his ex-wife, Carneice Pierce.

Mr. Pierce, now 67 years old, was a highly-respected Superior Court judge when he stepped down from the bench in the mid-1990’s to take a partnership in a big Boston law firm. Before long, his income at the firm was about $450,000 a year. Unfortunately, his domestic life was not doing nearly as well, and in 1999 he and Carneice were divorced after thirty-two years of marriage. Given his income—which was more than five times as much as his wife was earning—Mr. Pierce was ordered to pay her $110,000 a year in alimony, until either her remarriage or the death of either party.

The court order said nothing about retirement , but Mr. Pierce raised that issue himself in March of 2008 when he retired from the law firm and sought to have his alimony obligation terminated, or at least greatly reduced. Carneice, who was still working but earning less than before, would not agree to a change in the alimony order. A divorce court judge ordered the alimony reduced to $42,000 a year, but neither side was happy with that, and the case was litigated all the way to the Massachusetts Supreme Judicial Court (the “S.J.C.”).

The S.J.C. upheld the $42,000 award, but stressed that courts in Massachusetts cannot automatically reduce an alimony award because of retirement . Divorce court judges would have to look hard at all of the circumstances, including the ability of the person paying alimony to earn additional income after retirement . The mere fact that someone has chosen to retire, the S.J.C. reasoned, does not absolve him of all his pre-existing obligations. In Mr. Pierce’s case, he is still capable of earning a significant income from teaching, consulting, or other law-related activities.

Although the S.J.C. ruling applies only in Massachusetts, the courts in many other states have previously held that, in alimony awards, the key issue is not necessarily someone’s actual earnings, but rather his earning capacity. If a person voluntarily chooses a lif...

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