Physical separation does not stop the clock, so to speak

The length of a marriage, for purposes of alimony and equitable distribution, is often measured by utilizing the date of marriage and the date a Complaint for Divorce is filed. In some cases, parties choose to enter into a cut-off agreement rather than file a Complaint for Divorce. That will also serve as an end date for measuring the length of the marriage. However, what happens when the parties have sold their marital home, and lived separate and apart for 11 years before one party files a Complaint for Divorce? In that situation, when did the marriage “end”?

Most recently, the Appellate Division affirmed that a marriage does not end until a Complaint for Divorce is filed, irrespective of a decade of physical separation. In the matter of Milcarsky v. Milcarsky, the parties were married in October 1995. They separated in June 2004, at which point they sold their marital home and divided their personal belongings. However, Ms. Milcarksy did not file her Complaint for Divorce until November 2015.

At the time of trial, Ms. Milcarksy contended that she was disabled, unable to meet her financial needs, and therefore entitled to alimony. Mr. Milcarsky denied having any alimony obligation, and he contended that the length of the parties’ marriage should be measured as less than nine years (October 1995 through June 2004).

Interestingly, the Court reviewed the length of the marriage in two distinct ways for two distinct purposes. For the purpose of calculating alimony, the Court determined that the physical separation and the payment of support did not equate to a clear termination of a marital relationship. The Court opined that the parties’ twenty-year marriage qualified the wife to receive open durational alimony, which she was awarded. However, for the purpose of dividing the husband’s retirement account, the Court utilized a different analysis. The Court found that the wife did not make any marital contribution, economic, noneconomic, or otherwise, to the accumulation of the value of the husband’s 401(k) after the parties’ separation. Accordingly, while the Court awarded the wife a portion of the husband’s retirement account, it was measured utilizing the date of separation.

The lesson to be learned in this case is that absent an express, written agreement stipulating to the end date for a marriage, physical separation is not enough—and if you do not want the length of your marriage continuing to accrue—you should consider taking action sooner than later.

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