How Does A Long Separation Affect My Divorce In New Jersey?

How Does A Long Separation Affect My Divorce In New Jersey?

A long separation period before filing for divorce does not mean that the marriage has been legally terminated. The divorce lawyers at our East Brunswick, New Jersey law firm understand that under New Jersey divorce law that the date of the filing of the Complaint for Divorce is filed is the date that a judge of a New Jersey Family Court shall use when deciding issues ranging from division of property to alimony. Therefore, the attorneys at our divorce law firm always explain to our client’s that just because you are separated from your spouse does not mean that, under New Jersey divorce law,that the marriage has ended. Instead, as explained below, even an eleven year separation did not relieve the husband of his alimony exposure. Further, all property acquired during the separation period was included for equitable distribution of all assets that accumulated during the separation period.

In Milcarsky v. Milcarsky, the parties were married in 1995. The parties separated in 2004 and had no children born of the marriage. Although the parties separated in 2004, the parties did not file for divorce until November 2015. The Superior Court of New Jersey Family Part ordered the husband to pay the wife $250 in pendente lite support on June 24, 2016. Pendente lite support is support that is paid while the divorce proceedings are pending or in process. During trial on October 25, 2016 and November 16, 2016, the court heard testimony from both parties about their marriage. Specifically, the parties gave testimony regarding their income, assets, and marital standard of living. After trial, the judge gave a decision orally on January 11, 2017. The judge found that the husband was the primary earner during the parties’ marriage while the wife was a homemaker who cared for her children from a previous marriage. Additionally, the parties lived together in a marital home they purchased. The wife was diagnosed with a chronic medical condition in 2002. The judge also found that the parties agreed to sell the marital home and divide the proceeds after they separated in June 2004. After the parties separated, the husband paid for the wife’s new apartment and paid off her car. Also, the husband continued to cover the wife under his health insurance and provided $200 per month to her for prescription costs.

The trial mainly focused on the husband’s 401(k) account and the wife’s request for alimony. The trial judge rejected the husband’s claim that the marriage was legally “dead” when the parties separated in 2004. The judge, instead, agreed with the wife and found that the date the divorce complaint was filed was the controlling date with regarding to equitable distribution. Furthermore, the judge found that the husband’s handwritten notes amounting to what appeared to be a separation agreement was not valid, especially since the wife stated she had no memory of making such an agreement. The trial judge ultimately found that mere separation and support payments do not clearly demonstrate termination of the marriage. Additionally, the trial judge found that the $200 per month that the husband was providing to the wife during the separation was not nearly enough support to be considered equitable. The trial judge did, however, find that the wife was not entitled to half of the husband’s 401(k) because the wife voluntarily stopped contributing toward the 401(k) when the parties separation in 2004. The judge reasoned that the husband had received no marital benefit since the separation; therefore, it would be unjust to divide the 401(k) evenly between the parties. Ultimately, the trial judge found that during the parties’ twenty-year marriage, the wife contributed to the 401(k) for eight years and should be awarded 43% of the husband’s 401(k).

With respect to alimony, the judge found that the wife is disabled and unable to work, leaving her with only $600 per month in disability payments. The judge found that the husband earned $155,000 in the previous year, and ordered that he contribute $250 per week as open durational alimony to the wife. The trial judge reasoned that the wife’s expenses totaled $2,600 per month while the husband’s totaled $6,325 per month, and the parties had been married for over twenty years. Lastly, the judge ordered that the weekly alimony amount should increase to $500 per week if the wife were to obtain her own apartment.

On appeal, the New Jersey Appellate Division stated that its review is limited, especially if the trial court’s findings were based on credible and substantial evidence. The Appellate Division also indicated that it must give great deference to the trial court due to the trial court’s particular expertise in the field of law because it has the opportunity to hear from witnesses. The Appellate Division further explained that the trial court has discretion to award alimony and divide assets equitably. However, the trial court must abide by the factors set forth by statute when awarding alimony.

The husband argued, on appeal, that the trial court was wrong to award open durational alimony to the wife since the parties had a separation agreement. Additionally, the wife cross-appealed and argued that the alimony award was not enough to maintain her marital lifestyle. Although the husband argued that the parties’ marriage was not twenty years due to their separation, the Appellate Division disagreed. The Appellate Division stated that the trial court did not make a clear mistake that requires reversal. The court reasoned that a trial court should use the date a party filed for divorce as the date the marriage ended, absent a written agreement to the contrary. In this case, the trial court and Appellate Division found the date the parties’ marriage ended to be November 4, 2015, not June 24, 2004. Additionally, the Appellate Division found that the wife was entitled to alimony because the husband’s income was significantly higher than the wife’s income and the parties were married over twenty years. Ultimately, the Appellate Division found that the trial court was correct to award alimony in the amount of $250 per week.

Please contact our office today if you or a loved one is currently separated from their spouse so we may explain your rights.


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