This very same question was asked in Marriage of Reynolds (1998) 63 CA4th 1373. “If Husband had indeed retired from active employment, could the trial court properly attribute to him a monthly income based on his ability to earn rather than his actual earnings, thus requiring him to work well past the “generally accepted retirement age of 65”?” In re Marriage of Reynolds (1998) 63 CA4th 1373; In re Marriage of Sinks, 204 Cal.App.3d 595. The answer was no. The Reynold court held no one may be compelled to work after the usual retirement age of 65.
The courts have held that a supporting spouse cannot deliberately shirk support obligations by refusing to work. Philbin v. Philbin (1971) 19 Cal.App.3d 115. The courts have also held that a supporting spouse cannot retire prematurely in order to avoid paying spousal support. In re Marriage of Sinks, 204 Cal.App.3d 592; In re Marriage of Stephenson, 39 Cal.App.4th 78. But the same cases have recognized that, in the instance of a bona fide retirement, a supporting spouse should not be forced to continue working and not invade retirement principal.
Just as a married couple may expect a reduction in income due to retirement, a divorced spouse cannot expect to receive the same high level of support after the supporting spouse retires. In re Marriage of Reynolds (1998) 63 CA4th 1373. Therefore, be sure to speak with a qualified attorney about your options for the future, so that you can plan ahead in the likely event that a spouse will retire.
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