concurring in part and dissenting in part.
While I concur in Justice Stein’s analysis of the Legislature’s undoubted intent not to have these 1985 support guidelines applied retroactively to invalidate preexisting agreements or prospectively to modify certain agreements, I add these few observations about the devastating effect of the majority’s opinion on most homemaker-wives. Only those who can speak out of both sides of their mouths will find solace in the opinion of the Court.
After thirty-one years of marriage, Frank T. Innes entered a solemn contract on March 26, 1984 to pay his soon-to-be-divorced wife $650 per month in alimony. He did not say, “I promise to pay $650 per month so long as I am employed by Monroe Systems for Business.” He said he would pay until “the death of the plaintiff, the death of the defendant or the remarriage of the defendant.”
He lived up to that promise for a little over a year, but when he lost his job with Monroe Systems for Business he decided that he would not support his wife anymore. He unilaterally suspended his alimony payments. His wife had to bring an action to compel him to live up to his contract to pay the agreed *535support. In those proceedings the trial court allowed him a reduction of $100 per month.
I feel sorry that a corporate restructuring caused Mr. Innes to be displaced from his job and take an early retirement. I am sure that the Family Part has balanced, and would balance, the equities of the situation properly. But I fail to see how the legislation that was enacted to correct sex discrimination in marriage and family law could be interpreted to cause the abrogation of his agreement.
Were there fraud, or a change of circumstances that was not reasonably foreseeable, I could see the majority’s position. But what we have is a disabled spouse who has moved to Florida in reliance on her husband’s promise. All that she asks is that before letting the husband out of his contract, a court consider how well off he really may be.
The cloth is quite binding in this case because the husband does not have a golden parachute or anything of that nature. There is not a lot of money to go around. But let us up the ante a bit and consider the case as one involving a top executive at Warner Communications who loses his job in a merger with Time, Inc. And assume that he too had entered an agreement to pay his wife $650 per month and had given her a share of his pension in equitable distribution from which she bought a home. Then assume that he is eased out, but that his pension will give him $70,000 per year in income. Would it be wrong to think that he is able to meet his commitments to the wife who had helped him up the corporate ladder? I should hope not.
It will strike the sponsors of the legislation to implement the report of the New Jersey Commission on Sex Discrimination in Marriage and Family Law (Commission) as the bitterest parody of justice that the law they sponsored to counter discrimination against women in our divorce law should have the unintended consequence of tearing up separation agreements.
The legislative history of the bill is quite adequately set forth in the brief for the defendant-wife. The bill that eventually *536amended N.J.S.A. 2A:34-23 was introduced in 1981 by Senators Lipman and DiFrancesco for the express purpose of eliminating inequities in divorce and alimony statutes that had worked to the detriment of women, keeping them in economic bondage. The uncertain economic plight of divorced homemakers was of special import to the sponsors of the bill. The sponsors relied on the report of the Commission. See Discrimination in Marriage and Family Law: New Jersey Commission on Sex Discrimination in the Statutes (2d Report, Sept.1981). Some excerpts from a Commission report prepared in conjunction with Senators Lipman and DiFrancesco’s 1984 version of the bill are illustrative of the sponsors’ concerns.
Research indicated that divorce led to improved economic status for men while lessening the economic status of women. The wage-earning spouse continued to reap the benefits of what had been acquired through the joint efforts of the parties, increased assets and earning potential, while the homemaker with fewer skills and much less work experience endured a “dramatically difficult change in lifestyle.” New Jersey Commission on Sex Discrimination in the Statutes, Analysis of Senate Bill 554: Background, p. 7 (1984). Concluding that divorce “discriminates against the non-wage-earning partner,” the Commission’s recommended factors for determining alimony emphasized that “alimony is an appropriate tool for bringing a non-wage-earning spouse up to par with the wage-earner.” Ibid.
We know little about the Inneses, but we can infer that the homemaker-spouse also worked outside the home. She does have a retirement pension from the University of Pennsylvania. Nonetheless, the principle adopted by the majority would be applicable to the prototype situation that concerned the Commission. In most marriages, as the Commission noted, “one spouse may have foregone earning potential in performing the domestic duties * * *. It would be inequitable upon dissolution to saddle (this spouse) with the burden of reduced earning potential and allow the (other) spouse to continue in an advanta*537geous position which was reached through joint effort.” Id. at 11. In such a case, in which a wife helped her husband up the corporate ladder, we can see how the majority’s interpretation would work to her disadvantage.
The particular provision the Court relies on was not part of either the 1981 or 1982 versions of N.J.S.A. 2A:34-23. It was not until 1985 that a proposed Assembly Bill added the following language to the factors for determining an alimony award:
When a share of income that is earned but not received from a profession or business is treated as an asset for purposes of equitable distribution, the court shall not consider that income when it is received for purposes of determining alimony and child support.
The drafters of the proposed 1985 version also addressed the issue in terms of equitable distribution. They added the following language to the 1985 bill:
When the court awards a share of the future income of a business or profession as pendente lite support, alimony or child support, it shall not include the same income in its award of equitable distribution.
In other words, do not count the income twice. Do not award alimony from anticipated future income and then capitalize it and treat it as a marital asset. The purpose of the amendment was simple: to prevent that kind of double-dipping. The sponsors deleted that language, however, because they thought that it would prove unworkable and lead to protracted litigation.
A later version of the bill, Assembly Bill No. 2619, contained the predecessor language to the current amendment to N.J.S.A. 2A:34-23. It read:
When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that asset for purposes of determining alimony.
It carries the same logical intent, namely, no double-counting of income.
The current language appears to have been added for fear that in awarding alimony courts might not consider income derived from retirement assets that were not subject to equitable distribution. In other words, if the parties were married for only ten years and the pension was of thirty years *538longevity, the first twenty years would belong only to the husband. That income can be counted. The last amendment was obviously a restrictive amendment intended to narrow the scope of the bill.
None of these factors is present in this case. There has been no double-counting in this case. The husband made an agreement to pay alimony. In reaching that agreement, no portion of his pension was double-counted for purposes of the property settlement.
What we have is a case in which the court must consider, in the context of Lepis v. Lepis, 83 N.J. 139 (1980), whether this so-called “change in circumstances” is one that was indeed not reasonably foreseeable by the parties in the making of the contract. Because the husband was sixty years old when the agreement was entered and normal retirement age would be sixty-five, an early retirement was clearly within the foreseeable future for this husband. It may be bad drafting or bad planning on his part, but I do not think it calls for the draconian interpretation that the Court imposes on the statutes designed to ameliorate the condition of women, not eviscerate their condition.
The limited purposes of the recent amendment to N.J.S.A. 2A:34-23, i.e., to prevent double-counting, do not in any sense require cancellation of this property settlement. This does not mean, as the majority opinion assumes, that the Family Part will blind itself to the realities of the situation. There is only so much money to go around in this case. But the affidavits show which of the two partners in this long marriage is now in a better position to cope with this economic adversity. Mrs. Innes is disabled. She is unable to work. There is nothing to indicate that Mr. Innes is unable to work. Presumably, he has chosen not to work. I cannot fault him for this. It is something to which we all aspire. Many of us would like to get out of our contracts at age sixty-one if we could. Life just does not work that way. (I should not prejudge Mr. Innes’ ability to find *539work. It is undoubtedly not an easy time for him either. But the majority’s opinion would apply as well to one who took an elective early retirement.)
Hence, I think the majority of the Appellate Division panel resolved the statutory issue correctly. The loss of employment by the spouse is a factor appropriately to be considered; on the other hand, the Family Part is not to blind itself to the husband’s other available resources in meeting his contractual commitments. I am sure that the sound discretion of our Family Part judges would result in an equitable disposition of the matter.
Justice STEIN joins in this opinion.
For affirmance in part, reversal in part — Chief Justice WILENTZ and Justices HANDLER, POLLOCK and GARIBALDI — 4.
For concurrence in part, dissent in part — Justices O’HERN and STEIN — 2.