Every day judges are called upon to calculate alimony and child support in the context of a divorce. But what happens when a party claims to be disabled and cannot work? Especially if the party claiming to be disabled is receiving Social Security Disability benefits, does the family court have the right to make its own determination of whether a litigant is disabled? The answer to this question was decided in a recently published decision by the New Jersey Appellate Division in the matter of Gormley v. Gormley.

In Gormley, the Wife suffered from Multiple Sclerosis and the Social Security Administration (“SSA”) determined that she was disabled. According to the SSA, in order to be declared disabled, “your condition must significantly limit your ability to do basic work such as lifting, standing, walking, sitting, and remembering—for at least 12 months.” For that reason, the Wife was unemployed and collected Social Security Disability payments.

Notwithstanding the SSA’s determination, the trial court found that this determination by itself was not enough to establish that the Wife was legitimately unable to work.  The trial court expressed that the Wife did not appear to suffer from symptoms that would prevent her from working such as “fatigue, bladder issues, tremors, and trouble with concentration.”  Moreover, the trial court noted that there was an absence of medical testimony supporting the Wife’s proffered condition. Therefore, the trial court imputed income to the Wife as if she was earning $12,480.00 per year, over her objection, for purposes of calculating alimony and child support.

Following the Wife’s appeal of the trial court’s decision, the Appellate Division reversed the trial court’s decision and determined that, under the controlling case law, “[W]hen 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.” Put another way, once the SSA declared that the Wife was disabled and unable to work, it was up to the Husband to prove otherwise.  For example, a litigant arguing against a disability determination could produce evidence that the disabled litigant was performing work “off the books,” or volunteering to do work for which he or she could otherwise earn an income. In this case, the Husband failed to display any evidence to overcome the presumption of the Wife’s disability.

Suffice it to say, parties going through a divorce that are dealing with the issue of disability should seek the advice of matrimonial counsel. Depending upon the facts and circumstances of the case, the issue of disability can become an important and complex issue in a divorce case, especially with regard to calculating alimony and child support.

* (Editor’s note: Victoria Paone Rosa, Esq. is an associate at the Law Offices of Paone, Zaleski & Murphy working out of the firm’s Red Bank office, located at 120 Maple Avenue. Victoria’s professional history includes clerking in Monmouth County for the Honorable Mara E. Zazzali-Hogan for both the Family Part, Chancery Division and Civil Division for 2016-2017. She is currently a member of the New Jersey State Bar, Middlesex Bar Association, Monmouth Bar Association, Monmouth County Legal Aid Society and Aldona E. Appleton Family Law Inn of Court. Victoria limits her practice to divorce, child support, child custody, equitable distribution, alimony, domestic violence, alimony, palimony and all other family law issues. Ms. Paone was selected by the Middlesex County Bar Association to receive the 2020 Young Lawyer of the Year Award. Her monthly column, “Divorce Hotline,” will serve to inform readers as to family law news, advice as to the divorce process, comment on recently published family law cases and more. Paone, Zaleski & Murphy can be contacted at 732-750-9797.)