Either party in a post-judgment divorce action may make an application to modify alimony and/or child support based upon a perceived substantial change in circumstances.  The party seeking the modification has the ultimate burden of demonstrating that a change in circumstance has occurred which would warrant a modification or termination of that support obligation.  A reduction or lack of income is a prominent reason why litigants believe they are entitled to relief.  Courts often hold that persons are not entitled to a reduction or termination of their support obligation for two reasons:  The reduction or lack of employment (1) cannot be shown to be permanent in nature, and/or (2) was voluntary, at least in part.

Especially prevalent with the present economy, many motions filed with the Court do not meet the very high burden of showing changed circumstances, despite former employees experiencing long layoffs or terminations because, presumably, those displaced workers are at least capable of finding work earning similar wages elsewhere.

This is not the case with most persons declared to be disabled and eligible to receive Social Security Disability (SSD) benefits.  The vast majority of these cases involve individuals who have severe, permanent and involuntary disabilities which assumedly prevent them from earning in their prior field of employment.  Accordingly motions filed from SSD recipients for a reduction or termination of their support obligations were routinely addressed by the Court and the Court presumed that said person was disabled.  The prevailing view was that these persons could not be held to obligations ordered while they were not then disabled and income should not be imputed to them (to impute income means to assume for purposes of calculating support that said person could earn some figure higher than what they actually earn based upon their earning capacity), based upon the Social Security Administration’s determination.  The Court then placed the burden on the other party to attempt to prove that the SSD recipient was not truly disabled.  This task proved to be daunting and more often, unsuccessful.

However the Court’s decision in Gilligan v. Gilligan, decided on March 9, 2012, has attempted to even the playing field.  The Court in Gilligan noted that, pursuant to the Social Security Administration’s (SSA) own regulations, a disabled person may earn up to a maximum amount of income each year while still receiving SSD benefits.  In essence in certain cases a disabled person may still earn income engaging in some type of work with their particular disability.

In recognizing that a “disabled” person under the SSA’s regulations could also affirmatively earn income, the Court held that, should that person claim that they were unable to work at all, it would be that disabled person’s burden to prove it.  In this way a declaration of “disabled” entitling a person to SSD benefits now does not relieve that person of their duty to earn, except in limited circumstances.

Accordingly under the prevailing law in the State of New Jersey, a declaration by the Social Security Administration that a person is “disabled” and entitled to Social Security Disability benefits is no longer an automatic reduction or termination of that person’s support obligations.  In most cases, a substantial change of circumstances will have occurred and the disabled person’s obligation may be adjusted.  However that person must either obtain some form of extra income to supplement their SSD benefits, prove to the Court that their disability renders them completely unable to earn, or have the Court assume the extra income in their analysis and place forth a resulting support obligation higher than that which the person would have received before Gilligan was decided.

As with all blogs on this site, none of the above represents legal advice.  If you find yourself involved in litigation and encounter any of these issues, I strongly advise you to consult with experienced legal counsel immediately.