After Major Back Surgery And Inability To Return To Work Father Still Has To Pay Child Support

The failure to prove total disability from any meaningful work prevented the complete termination of child support.

In a recent upstate case, the Father had major back surgery and had been hospitalized for 30 days. After care included a brace, physical therapy, injections for pain, application for Social Security Disability and an eviction by his landlord.

The support order was $40/month (which the appeals court referenced as "minimal"). The court found that he had been unable to work for certain periods of time and unable to pay support during that time period for which support was suspended. However, since the father had subsequently worked a few times (he stated with pain), and did not prove that he was incapable of performing ANY other type of non-physical work the court found that he did not prove a complete inability to work and pay "minimal" child support.

Often I will have a client come in and state that they are on Social Security Disability or Workman's Comp and state that therefore they are disabled and unable to work. The Courts have long held that those determinations do not necessarily mean that the person is disabled from all other types of work and therefore relieved of or entitled to reduced child support. Careful proof must be provided beyond just the qualification for benefits documents. By example a person could have sustained an injury and cannot walk and is limited to a wheel chair. That by itself is not proof of an inability to earn. The person might be able to work remotely, might be able to work by using the phone and computer or reviewing or drafting documents. So such cases must be carefully supported as the Courts do not like to terminate child support obligations.

Such cases required the help of an experienced matrimonial attorney because it is easy to be misled by having a disability determination without more proof.