New Jersey Appellate Division Clarifies Standard for Support When a Litigant is Disabled

This month, the Appellate Division approved for publication the case of Gormley v. Gormley, A-1428-18, disability-200x300(App.Div. 2019) which addressed the standard to apply in determining the income of a litigant who has been determined by the Social Security Administration to be disabled and whether the Court should impute income for someone who has been adjudicated disabled and does not work.

In this case, the parties married in 2000, had one child, and the plaintiff filed a Complaint for Divorce in 2015.  The Defendant had already been diagnosed with multiple sclerosis at the time of the marriage. In 2002, also during the marriage, the Social Security Administration determined that the Defendant was disabled by multiple sclerosis. As such, she did not work and was receiving $2,023 per month in social security disability benefits. The Plaintiff was employed full-time and earned a commission based income.  In the two years before the trial, he had been earning approximately $150,000 per year.   However, in the year of the trial, he was working fewer hours in order to represent himself at trial, and to study psychology and parental alienation.  As such, he was earning approximately $112,000 per year.

The family court judge imputed $240 per week of earned income to the Defendant even though the Social Security Administration had determined that she was disabled and had been paying monthly social security disability benefits since 2002.  The judge reasoned that she did not visibly observe Defendant exhibit in court disabling symptoms from multiple sclerosis such as fatigue, bladder issues, tremors , difficulty in concentration or any other difficulties that the judge felt would prevent her from working.   No income was imputed to the plaintiff.

The trial court relied on the decision of another trial court judge in the matter of Gilligan v. Gilligan, 428 N.J. Super. 69 (Ch. Div. 2012), in which that family court held that a letter from the Social Security Administration is not enough by itself to establish that a litigant cannot work, and that more evidence is required.

The Appellate Division reversed this decision and reaffirmed its holding in Golian v. Golian, 344 N.J. Super. 337 (App. Div. 2001), in which the Appellate Division held that a Social Security Administration determination constitutes a prima facie showing that a litigant is disabled and unable to work. This shifts the burden to the other party to refute that presumption.  The other litigant could use “lay testimony, expert testimony[,] or medical records, consistent with the Rules of Evidence, as the trial court deems appropriate.” Golian, 344 N.J. Super at 343.  If the opposing party is able to rebut the presumption of disability, then a court can impute income to the party receiving disability benefits.

In this case, the Plaintiff had the opportunity to have the Defendant examined by his experts, but did not refute the Defendant’s disability.  As such, the Appellate Division found that the trial court erred by imputing earned income to the Defendant.  The Appellate Division also felt that the trial court erred by not basing support obligations on the plaintiff’s earnings in the two years prior to trial when he was earning a higher income consistent with his earning capacity. Courts have to consider “potential
earning capacity of an individual, not his or her actual income.”  When a litigant has variable income, a court can reasonably use an average income to determine ability to pay support, including the years before and after the divorce complaint is filed.

Issues of alimony and child support can have numerous complexities.  The office of James P. Yudes, P.C. is here to assist you, even during this coronavirus pandemic.