Divorce FAQ's
1. What happens when a payor/spouse becomes disabled and he is no longer financially able to pay his alimony payments?
If you can’t work the same job and if make the same income that you used earn, then you can file a motion to reduce/terminate your alimony payments because of illness or disability. Illness and disability often can be considered to be a Lepis change of circumstances. In the case where the disabled party receives Social Security Disability benefits there is a presumption of inability to work. Thereafter, the burden is then shifted to the payor party to disprove/rebut the presumption. The court would then make inquires at to how that illness or disability affects the parties’ financial condition.
Reducing alimony based on disability or illness is decided on a case by case basis. The court must review many factors and also review the lifestyle of both parties. Moreover, the severity of the illness and disability is extremely importance. If an ex-spouse suffers a heart attack but still manages to return to work after his rehab, then it would be very difficult for him to make a strong case for an alimony reduction. Meanwhile, if an ex-spouse has a stroke, and if he becomes paralyzed and if he is unable to get back to work, this this would almost automatically trigger a plenary hearing to reduce or even terminate alimony. Thereafter, the court must consider the nature of the illness and or disability and its effect on the disabled party’s actual earnings, earning capacity, and total financial position.
Does your soon to be ex-spouse have an injury or ailment that could later become a disability? If this is the case, then you should contemplate every scenario and perhaps you should make financial decisions now that will protect you in the future. Perhaps you should consider obtaining a buy out of your alimony if you anticipate that your ex-spouse could be filing Lepis motions based on illness or disability.
2. What are some key cases on area of the reduction/termination alimony based on disability?
A. Adler v. Adler, 229 N.J. Super. 496 (App. Div. 1988). Here, the Appellate Division reversed a trial judge’s denial of a dependent spouse’s motion for alimony where she suffered from a congenital eye condition known as nystagmus, which impaired her ability to be employed. The court held that her health condition, regardless of whether she was aware of the debilitating nature of same at the time of parties’ settlement agreement was entered into, was a changed circumstance warranting the court’s review of the existing circumstances.
B. Foust v. Glaser, 340 N.J. Super. 312 (App. Div. 2001). Here, the court held that the payor’s health appeared to play a role in her decrease in earnings capacity.
C. Lissner v. Marburger, 394 N.J. Super. 393 (Ch. Div. 2007). In this case the husband alleged that his change in health was an issue relative to his application for modification of his child support. The court denied his motion to reduce his support. The court noted that his proofs were woefully lacking in that he only produced a letter supposedly form his physician, not on letterhead, which did not even summarily opine as to his future potential for employment from the medical standpoint.
3. Can my deteriorating health condition constitute sufficient grounds to justify a termination of alimony?
One of the most common ground that men use to base their motion to reduce/terminate alimony is a major illness or deteriorating health. The key issue in any alimony case based on illness is the severity of the illness, and its impact on the payor/husband’s ability to earn an income.
In most cases, if the payor/husband has filed sufficient moving papers, then most family courts will grant him a Lepis plenary hearing. These hearings can be extremely expensive to litigate because the applicant will have to produce a doctor(s) to verify his medical condition or illness to the court. Please keep in mind that medical records are considered to be hearsay. A lawyer can’t introduce the medical records unless they are substantiated by a medical professional. An applicant has two options that he can choose to pursue in a Lepis case based on the grounds of illness or a medical condition. The applicant can retain one doctor to review all of the medical records. Thereafter, this doctor can prepare an expert’s report, and testify at court. Alternatively, the applicant can subpoena the treating physician, and compel his or her appearance at the Lepis plenary hearing. Unfortunately, the later option has its drawbacks. Doctors like to be paid. Moreover, they don’t like to spend their days in court. The doctor may become so upset by being subpoenaed that he/she may drop the applicant as a patient.
In summary, in any Lepis case that centers around a “change of circumstances” based on an illness or medical condition, medical professionals must be brought in to testify. The doctor will have to prepare an expert’s report, and also be willing to testify about his/her findings at the Lepis plenary hearing. In my experience most doctors require a $2,500 to $5,000 retainer to prepare a report of this nature and to appear at trial. Nonetheless, if the alimony obligation is oppressive, then the high retainer fees to the evaluating physician may well be worth it. It is almost impossible for an applicant to prevail in an alimony reduction case based on an illness or medical condition unless a qualified medical expert is brought in to testify at the Lepis hearing.
4. I was declared to be disabled by the Social Security Administration. Does this event constitute a “change of circumstances” to warrant a termination of alimony?
If a person is declared disabled by SSA, then this event certainly constitutes a change of circumstances to justify a reduction/ termination of alimony. In the case of Golian v. Golian, 344 N.J. Super. 337 (2001), the court held that a declaration by the Social Security Administration (SSA) that a wife was disabled and eligible to receive Social Security benefits was prima facie proof of a disability. Moreover, the court held that a declaration of eligibility to receive Social Security also constituted a change of circumstances to enable the applicant to receive a Lepis hearing.
5. Can you please provide a summary of the Golian case?
This was a contested divorce case. One of the primary issues in the case was what type and how much alimony the wife was legally entitled to receive. The plaintiff/wife claimed that she was disabled and that she could no longer work for a living. The trial court ruled against the plaintiff/wife and it imputed an income to her of $15,000. Therefore, her alimony award was much lower than she had originally hoped for. The case was then appealed. The Appellate Division held that for purposes of calculating alimony payments based on a person’s ability to contribute to her own support, a determination by the Social Security Administration that the individual is disabled creates a rebuttable presumption of an inability to work. Here, the trial court recognized the plaintiff’s SSA disability status. However, it placed the burden on her to prove through medical evidence that she was unable to work. Because the plaintiff failed to submit such evidence, the trial court imputed to her an annual income of $15,000, which reduced her alimony significantly. The Appellate Division reversed, and it held that the Social Security Administration determination of disability was prima facie evidence of disability.
In many cases the family courts routinely impute income when a party voluntarily earns less than her potential. A person who claims that she is unable to work has the legal burden of proving the disability. The Golian court held that the plaintiff previously obtained an adjudication of her disability with the Social Security Administration. Moreover, there was sufficient evidence produced for the SSA to make a determination in her favor. The Golian court thus applied the doctrine of res judicata and it held that “administrative findings in one proceeding provide the basis for establishing prima facie evidence of the validity of a claim in a subsequent Law Division action.” Accordingly, the legal burden shifts to the party who challenges the presumption to present competent evidence to contest its validity.
In the Golian case, the defendant did not present evidence to challenge the validity of the Social Security Administration’s determination. In fact, the defendant assisted the plaintiff in applying for the award. Ultimately, the case was remanded to the trial court further proceedings in accordance with the decision.
6. Is there any way around the Golian holding that establishes a presumption of an inability to work if a person receives Social Security disability payments?
Yes, a very on point case is Wasserman v. Parciasepe, 377 N.J. Super. 191 (App. Div. 2004). Here, the wife filed a motion to reduce her $400 per month permanent alimony payment to her husband. The defendant/husband filed an answering certification and he opposed any reduction of his alimony. On June 20, 2003, the court entered an order for the requested discovery and set the case down for a plenary hearing. The issues in the hearing would be on the issue of modification or termination of the alimony obligation. Thereafter, the parties engaged in extensive discovery as set forth in the court order. Thereafter, the defendant/husband filed a motion to seek an increase in his alimony. He alleged that there were changed circumstances by the plaintiff. He claimed that she was making a lot more money, and that the original amount of alimony ordered was not able to keep him in a lifestyle commensurate with that he enjoyed during the marriage.
The essential history of the case is as follows. The parties were divorced June 26, 2002. The matter was not settled and there was a full trial. Prior to the trial, and for sometime back into the marriage, the defendant was not working and he was collecting Social Security disability income because of a kidney disease. About four months before the trial, in February of 2002, the defendant fortunately received a kidney transplant. At the time of the trial, he was still on Social Security disability because kidney transplants often have some severe rejection issues for a significant time after the transplant surgery.
At the divorce trial, the court awarded the defendant $400 per month of permanent alimony. In reaching its decision the court made a finding of fact that the income of the plaintiff was $130,000 per year and the income of the defendant was only the Social Security disability benefits he received of $ 13,000 per year. Thereafter, the plaintiff/wife filed a motion for a reduction/termination of alimony. In the plenary hearing, the plaintiff had to prove to the court that she has overcome the presumption of the defendant’s inability to work that was raised by Social Security disability payments. See, Golian v. Golian, 344 N.J. Super 337, 781 A.2d 1112 (App. Div.2001).
At the plenary hearing, the plaintiff produced two witnesses, Dr. Joseph A. Vassalotti, a nephrology specialist, and Dr. David B. Stein, a licensed rehabilitation counselor/employment counselor, Dr. Vassalotti reviewed over 100 pages of medical records, concerning the defendant, including records before the transplant, the operative report of the transplant, the discharge report from the transplant surgery, and the subsequent medical records on defendant’s blood work and urine testing.
The plaintiff’s next witness was Dr. David B. Stein, who was a licensed rehabilitation counselor. Dr. Stein interviewed the defendant extensively and with this information did research on jobs available with certain medical restrictions. Dr. Stein developed an historical employment picture for the defendant both before and since his kidney disease problems. Dr. Stein was aware of the medical restrictions placed on the defendant. Dr. Stein’s opinion was that the defendant is employable on what he termed “light duty work” in the securities sales area, sound engineering, bookkeeping and photography. Dr. Stein then opined that a reasonable rate of compensation for services of the defendant would be in a range of $ 30,000 to $77,000. He lastly opined that he felt realistically defendant could expect to find a job in the $ 40,000 to $ 60,000 range.
In opposition, the defendant took the witness stand on the issue of his employability. In his testimony he recounted to the court, medically related problems he has other than the kidney disease. These included hypertension, blood-pressure issues, sleep apnea, gout, edema, diabetes, numbness in his hands and feet and a significant weight problem (defendant is significantly overweight). He informed the court of the eleven (11) different medications he takes on a daily basis. He testified that he sees doctors concerning his kidney disease and that weekly he was going to a psychotherapist. In his testimony, he did make the statement “I want to get a job.” He testified that his income now is about $ 1,100 a month from Social Security, $400 a week from alimony and minimal income from photography which is not commensurate with his lifestyle in the marriage. He further testified that the plaintiff’s income has substantially increased.
In the Wasserman holding, the court noted that the initial burden of proof normally lies on the proponent of the particular fact in question. Notwithstanding, the court held that the plaintiff did refute the presumed evidential fact by clear and convincing proof. The court noted that the testimony of Dr. Vassalotti was clear and very credible. Moreover, the court noted that plaintiff successfully refuted the presumed fact of unemployability. Moreover, the plaintiff was able to come forward with a vocational expert to indicate the type of job and income the defendant was capable of earning. The court noted that the testimony offered by Dr. Stein was also extremely credible. Dr. Stein indicated in his testimony that the defendant was employable on a full time basis although with restrictions concerning lifting and vigorous activity. Basically he requires a light duty job. Dr. Stein did develop in his testimony occupational descriptions of the type of jobs that this defendant could fulfill, given his restrictions, and further given his employment history.
In summary, the court held that the defendant/husband could engage in a job occupation(s) such as photography and bookkeeping. The court ruled that it would impute to the defendant income of between $35,000 and $40,000 per year. Therefore, the court reduced the defendan’s alimony from $400 to $150 per week.
7. What is the significance of the Wasserman v. Parciasepe case?
The main legal significance of the Waserman case is if a spouse is declared disabled by SSA, and if she is requesting “big bucks” for alimony then you can still contest the amount of the alimony award. You should not “cave in” merely because your ex-spouse has been declared disabled by SSA. In many cases a person can still earn some type of income even if he has been declared disabled by the SSA. You can hire your own doctor and have your ex-spouse medically evaluated. Moreover, you can hire your own employment expert who can interview and evaluate the earning capability of your ex-spouse. Hiring these expert witness will cost you some serious money. However, if you build a good case then you may be able to obtain a reasonable settlement with your ex-spouse, and force her to accept a lower amount of alimony. Nonetheless, in the Wasserman case the plaintiff probably spent more than $100,000 in legal fees and expert costs. She probably spent more in litigation costs than the amount that she saved in alimony payments.