As is widely known, the filing date of the complaint for divorce which actually leads to a divorce is the “cutoff date” for equitable distribution, that is, assets acquired up to that date are generally subject to equitable distribution, and assets acquired after that date are generally not. This is a general rule and cannot be taken as a total brightline test since there are no notable exceptions. Among these are: (1) assets acquired by way of gift or inheritance or intestate succession (death without a will) not from a spouse; (2) assets acquired with other assets which were either from a third party as in the first example of acquired by one party prior to the marriage. An exception to the cutoff date would be an asset acquired by one party after the cutoff date but with assets which were subject to equitable distribution. Again, these are general rules and there are always exceptions or other fact situations which render a general rule inapplicable. Obviously, it is best to consult qualified counsel since each circumstance is fact-sensitive, and the result usually turns on very specific development of the facts.

One exception to the timing of “cutoff date” rule is advantageous to the parties. Say that (for one reason or another) the parties are cooperative and want to attempt to negotiate an agreement before filing for divorce. Their hope is that they can amicable provide the other, through counsel, with sufficient documentary information upon which to adequately understand their financial circumstances and based on that understanding, negotiate an agreement, in which case, they can then file for divorce and obtain an uncontested termination of their marriage within a few weeks. Using this methodology, they can avoid certain judicial systemic entanglements.

 

 

Problem: if they were to file for divorce, as stated above, the general rule is that post-complaint asset acquisitions are not subject to being divided in the divorce process. If they try to negotiate without filing, if the negotiations should fail to bear fruit and they must thereafter file and implicate the court system in their settlement process, any assets acquired between the time that they start negotiating and the time it fails and one of the files is subject to equitable distribution.

 

One party may wish to avoid this problematic result. One way to accomplish is to stipulate a particular date as the agreed-upon cutoff date in the event that they might have to later file without an agreement. Needless to say, such an agreement should be in writing, and for safety sake, signed by both parties, not just their attorneys.

 

Thus, under this scenario, the parties would be free to continue their efforts but with the effect (relative to equitable distribution) that a complaint had been filed.

 

A cut off date can similarly be used to fix the end date of the marriage for alimony purposes.

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