Social Security Disability and Alimony
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.