In a divorce case, a higher income earning spouse may be “on the hook” to pay maintenance (alimony) and child support. There are divorces, however, in which this higher income earning spouse is in his or her sixties and nearing retirement age. Some dads have children when they are in their fifties, or later. In other cases, a divorcing couple, after a longer term marriage, splits up after their children are adults, thereby leaving spousal maintenance as the sole support issue to be determined. The question arises in these cases as to whether that higher income earning spouse is going to be able to retire when reaching retirement age or whether the law requires that spouse to keep the income rolling in regardless of that his or her age. Prior to changes in statute, there was already case law supporting the notion that there was a valid correlation between retirement and modifying support obligations. Statute now codifies such notions.
The Colorado Legislature has addressed this issue in C.R.S. 14-10-122, which states:
“…(b) A payor spouse whose income is reduced or terminated due to his or her retirement after reaching full retirement age is entitled to a rebuttable presumption that the retirement is in good faith.(c) For purposes of this subsection (2), “full retirement age” means the payor’s usual or ordinary retirement age when he or she would be eligible for full United States social security benefits, regardless of whether he or she is ineligible for social security benefits for some reason other than attaining full retirement age. “Full retirement age” shall not mean “early retirement age” if early retirement is available to the payor spouse, nor shall it mean “maximum benefit retirement age” if additional benefits are available as a result of delayed retirement.”