By Robert B. Kornitzer, Esq. and Caitlin Dettmer
The previous blog mentioned that when courts impute income, they consider the earning capacities of each party. One of the things that can affect the way a court perceives earning capacity is a disability. If a party has been declared disabled by the Social Security Administration (“SSA”), the court assumes that they are unable to work and will impute a lower income; however, the court allows the other party to challenge that presumption. Golian v. Golian, 344 N.J. Super. 337, 342 (App. Div. 2001).
Such a challenge can be an important tool for litigants because a declaration of disability does not mean that an individual is entirely incapable of producing income. The SSA allows disabled individuals to work so long as the work is not “substantially gainful.” 20 C.F.R. § 404.1571. Substantially gainful activity is defined as work which “involves doing significant physical or mental activities . . . for pay or profit.” 20 C.F.R. § 404.1572.
Proving that a disabled spouse is able to do non-substantially gainful work may increase the amount of income that a court imputes to the spouse seeking support. For payors whose former spouses are declared disabled, this may lead to paying less alimony. For payees whose former spouses become disabled, a successful challenge may lead to receiving a lower alimony payment.
Parties whose spouses obtained Social Security disability benefits during the marriage may have a difficult time challenging the presumption that their former spouse is unable to work. In Gilligan v. Gilligan, the court emphasized that it would be unfair to “permit a divorce litigant to . . . challenge his or her spouse’s disability after (a) having previously assisted the spouse in obtaining [their disability] status, and (b) having previously spent the [disability] funds during the marriage.” 428 N.J. Super 69, 78 (Ch. Div. 2012).
Litigants should also be aware that Social Security disability status is not necessarily permanent. The SSA reviews those who receive benefits periodically. Individuals with disabilities that are expected to improve with time are reviewed more frequently than those whose conditions are not expected to improve. If an individual’s disability status were changed or revoked by the SSA, this would surely constitute a change in circumstance, as is required to modify alimony awards.
Though highly influential, an individual’s disability status is still just one of many factors which will be considered by a court when imputing income (to both supported spouse as well as supporting spouse) for the purpose of determining an alimony award.
If you would like to speak with an attorney about disability or alimony in New Jersey, please contact Robert B. Kornitzer.