The Importance of the Filing Date of the Complaint

A recent unpublished decision from the Appellate Division, McNamara v. McNamara, serves as a reminder that, when it comes to marriages, the old saying is true: it ain’t over ’til it’s over.  In McNamara, the parties separated in 2006, but the husband did not file the complaint for divorce until 2008.  However, in his first attempt to file the complaint, he failed to properly serve his wife.  He filed two other complaints in a similarly deficient manner, until finally he filed a complaint that stuck – in February 2013, about seven years after the parties’ separation.

The parties were able to settle all of the issues except one: when did the marriage end?  As family attorneys know, this question is critical because the end date of the marriage serves as the cut-off date for purposes of equitable distribution of marital assets and debts.  For example, at issue in the McNamara case, the husband held a pension during the marriage, to which the wife was  entitled an equitable share.  The question was whether she would be entitled to a share of the pension’s value as of December 2006 (the date of separation), as of June 13, 2008 (the date the husband filed his first complaint for divorce), or as of February 13, 2013 (the date the husband filed a complaint for divorce that commenced a proceeding that led to a final judgment of divorce).

If you ask the parties to a marriage when their marriage ended, you will inevitably get different answers from each spouse.  The question is, truly, a subjective one.  When I was a law clerk, I saw a trial during which the husband testified that he knew the marriage was over while the parties were on their honeymoon – and they were married for more than twenty years.

Because the question of the end date of the marriage is a thorny and subjective one, our courts have long instituted a presumption that the end date – and therefore the cut-off date for equitable distribution purposes – is the date on which the Complaint for Divorce was filed.  Not only must the complaint be filed, but the complaint must commence a proceeding that culminates in the entry of a Judgment of Divorce.  This caveat is a logical one.  I can imagine a scenario where a complaint is filed, the parties reconcile for a period of time, and then later decide to go through with a divorce.  The marriage couldn’t be considered “irretrievably broken” the first time the complaint was filed, since the parties ended up giving it a second try.

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Using a Date other than the Filing Date of the Complaint to Establish the End Date of the Marriage

So, if your client wants to use a different date than the filing of the complaint for divorce to establish the end date of the marriage, he or she better be prepared to prove it.  As the Court in  observed, the only way to really do so – under the current law –  is to show that the parties have not supported one another for some time, and to show that a complete distribution of the assets/debts has already been made.  If the parties have truly ended the commingling of their assets and live independent lives, then the presumption can be overcome.

And of course, one way to get around the problem entirely is to enter into a cut-off agreement, or an agreement to utilize a specific date as the end date of the marriage for purposes of equitable distribution.  This probably would have helped Mr. McNamara, whose pension was ultimately divided as of February 2013 rather than December 2006.

Practice Tip

As all litigators know, timing is everything.  A conversation with your clients about the timing of the filing of the complaint or entering into a cut-off agreement is critical to effectively representing your client with respect to his or her financial interests.

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