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Long-term Separation Can Affect Distribution of Assets and Alimony Determination in New Jersey Divorce

Floor cracked with divorce sign

Couples in troubled marriages often do, and often should, take due time to decide whether divorce is ultimately the right choice.  We have discussed trial separation before, which can be a useful in-between option for couples on the fence or where there are medical or other legal benefits to remaining married.  However, married parties should be aware that a lengthy separation, even without a formal agreement, can affect how a divorce will eventually play out.  As illustrated by a recent appellate court decision in New Jersey, a long-term separation may have a significant effect on how alimony is calculated and on the distribution of marital assets in a divorce.

Married couple separates, wife waits nine years before filing for divorce in New Jersey

The case of Milcarsky v. Milcarsky involves a husband and wife couple who married in 1995 and separated in 2004.  The wife filed for divorce 11 years later in 2015.  During the marriage, the husband was the primary wage-earner while the wife acted as homemaker and cared for her children from a prior marriage.  The parties purchased and lived in a marital home.  In 2002, the wife was diagnosed with a serious and chronic medical condition.

After separating in 2004, the parties agreed to sell the home and divide the contents and sale proceeds.  For a while the husband continued to cover the wife under his health insurance and gave her $200 per month to help with medical bills.

The focus at trial and on appeal was on the distribution of the husband’s 401(k) as well as the wife’s claim for alimony.  The appellate court, affirming the family court, rejected the husband’s claim that the marriage was “factually and legally dead” as of the separation date (nine years before the divorce filing), which would render any property acquired thereafter separate property.  A 20-year marriage would lead to a very different alimony calculation and asset division than a 9-year marriage:  A lower income spouse is entitled to lifetime alimony if the marriage is over 10 years.

Wife receives alimony and part of the husband’s 401(k)

The court ultimately decided that the lengthy separation did not completely eliminate the wife’s claims for alimony or the equitable distribution of marital assets; the marriage was not “dead” as of the separation date, but rather was ended as of the filing of the divorce complaint.  However, the time spent apart did have an effect on the amount of alimony appropriate, as well as how the assets should be distributed among the parties.  Although the wife was entitled to part of the husband’s 401(k), the court found that while the parties were separated, the wife was not contributing to the value of the 401(k).  She had contributed, via homemaking, for 43% of the time of the marriage (9 out of 20 years), and thus was entitled to half of 43% of the retirement account, rather than half of the total at the time of the divorce. 

The court also found the wife was entitled to lifetime alimony because the marriage lasted over 10 years, even though the parties separated after nine.  The court weighed the statutory factors and determined an alimony amount appropriate based on the parties’ income disparity, with particular regard to the wife’s medical bills.  She was not, however, entitled to an amount sufficient to “maintain the marital lifestyle,” given that the parties were separated and that standard of living had not been the status quo for a very long time.

If you are considering divorce and need experienced legal help evaluating and resolving all of the related issues, contact the skilled and effective New Jersey family law attorney John B. D’Alessandro for a consultation on your case, in Union at 908-964-0102.

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