In the recent case of Gormley, the NJ Superior Court Appellate Division clarified the case of Gilligan2, which was being misinterpreted to state that a party who receives social security disability during a marriage cannot rely on the Social Security Administration's (SSA) determination as prima facie evidence of the party's inability to work for purposes of income imputation in the calculation of spousal and child support.
The Appellate Division ruled that when, “the SSA has determined a party is disabled, a presumption of disability is established and the burden shifts to the opposing party to refute that presumption. To the extent Gilligan states otherwise, we reject its holding.”
Why and how is this relevant in calculating alimony or child support?
The salient facts from Gilligan are as follows:
- At the time the parties were married, the defendant already suffered from multiple sclerosis (MS). In 2002, the SSA had determined that she was disabled. For that reason, the defendant was unemployed. At the time of the trial, the plaintiff had been employed full-time since 2013 in a commission-based job earned approximately $150,000 annually during the two years before the trial. By the time the matter was tried, the plaintiff decided to reduce his hours to begin studying psychology and researching parental alienation. He also reduced his hours at work to prepare for trial in this matter. Nevertheless, the plaintiff contended that his reduced income was based upon his employer's new commission formula.
- After imputing income to the defendant in the amount of $240 per week, the judge ordered the plaintiff to pay $200 in alimony per week, deviated from the Guidelines by ordering $90 per week for child support, and required the plaintiff to maintain medical insurance through his employer, with the defendant paying all unreimbursed medical expenses.
- The defendant filed a motion for reconsideration, arguing that the judge erred in her calculation of support to be paid by the plaintiff when she imputed income to the defendant and failed to impute income to the plaintiff. The defendant also claimed the judge failed to calculate child support and unreimbursed health expenses according to the Guidelines.
- In response to the defendant's motion, the judge recognized that she did not give any reasons for deviating from the Guidelines, and in an oral decision, clarified that she found good cause, pursuant to Rule 5:6A, to deviate. The judge reasoned an injustice would occur if the plaintiff was required to pay child support pursuant to the Guidelines because he "is not going to see his child," and the parents and the child "contributed equally" in the circumstances that led to granting sole custody to the defendant and denying the plaintiff any parenting time. The judge denied the defendant's motion to reconsider her calculation of child support and alimony.
In Gormley, the Appellate Division concluded, “We agree that "[i]ncome may be imputed to a party who is voluntarily unemployed or underemployed" if the party's actions are "intentional . . . without just cause," and that the "party asserting inability to work due to disability bears the burden of proving the disability." Golian, 344 N.J. Super. at 341. However, when the SSA has determined that a party is disabled, a presumption of disability is established. Id. at 341-42. When a party has been adjudicated disabled by the SSA, that determination "constitutes a prima facie showing that [a party] is disabled, and therefore unable to be gainfully employed, and the burden shifts to [the opposing party] to refute that presumption." (Emphasis added). Only if the opposing party can rebut the presumption of disability, the trial court may then impute income to the party receiving disability benefits. Id. at 341-43. However, as we specifically stated in Golian, a party's "SSA disability status . . . result[s] in a presumption of inability to work and the burden should be on [the opposing party] to rebut that presumption before income can be imputed to" the party receiving SSD benefits.”
If you and your spouse have a child (or if you share a child in common but were never married), a disability determination may have serious and long-term financial consequences, particularly in the calculation of alimony and child support. Moreover, a disability designation is also a factor for consideration in lengthening the term of alimony. If a parent receives disability, a minor child may also be entitled to benefits, which is another factor that must be considered for child support. These are nuanced and complex issues that necessitate consultation with counsel to ensure that your rights are protected.
Diana Fredericks, Esq., is a partner with Gebhardt & Kiefer, PC and devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, 2018, 2019 and 2020, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
If you have a suggestion for a future blog topic, please feel free to submit it via the Contact Us form.