Articles Tagged with disability

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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.

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In the recently published opinion of the Appellate Division in Fattore v. Fattore,A-3727-16 (App. Div. 2019), the Appellate Division the husband appealed a trial court order requiring him to3e728f0b3d0e026b62a8cb4b38918e95-1-300x200 indemnify his former wife for the loss of her share of equitable distribution of his military pension, which was waived as a result of his receipt of disability benefits. The wife filed a cross appeal arguing that the trial court should have granted her request for alimony to replace the value of her lost pension benefit.

In this case, the Fattores divorced in 1997 after a thirty-five year marriage.  In the marital settlement agreement, both parties waived any claim to alimony from the other.  As part of equitable distribution, the husband’s Army National Guard was divided equally between the parties. A Qualified Domestic Relations Order (QDRO) to divide the pension was completed in 1999.  In 2002, the husband became disabled. At that time, the husband collected his pension and disability benefits without any impact on the pension payout. In 2010 the wife inquired why she had not received any pension payments.  She was advised that a portion of her former husband’s pay was based on disability, which cannot be divided under the Uniformed Services Former Spouses Protection Act. The disability amount is used as an authorized deduction. In this case, once the disability was deducted along with the survivor benefit from the husband’s pay, there was nothing left for the distribution to the wife.

The wife wife filed a post-judgment motion in the family court seeking to compel her former husband to compensate her for the loss of her equitable distribution share of the military pension. The trial court decided to compensate the wife for her lost pension benefit based on the decision in Whitfield v. Whitfield, 373 N.J. Super. 573 (App. Div. 2004).  At the time of the trial court’s decision, the U.S. Supreme Court had not yet decided the case of Howell v. Howell, 137 S.Ct. 1400 (2017).  The trial judge appointed a pension appraiser to determine the value of the wife’s coverture interest in the husband’s pension and, in the interim, ordered the husband to pay the wife $1,800 per month, not as alimony, but as an equitable distribution payment. The trial court denied the wife’s request for alimony because alimony is not a compensation for equitable distribution and the parties waived alimony.

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In my last blog post I noted that effective September 1, 2017 a number of Court Rules directly impacting upon Family Part practice had been approved by our Supreme Court. I summarized and discussed a number of those Amendments. In this blog post , I will summarize and discuss two of the most significant and substantive new Rules which were adopted in this current cycle. Continue reading ›