Do Dates Matter When It Comes to Equitable Distribution and Alimony?


For some, it’s a matter of time. Not everyone in a bad marriage feels the need to run out and file a divorce complaint.  In fact, a number of people are just content with living separate lives. Meanwhile, at least one New Jersey couple found that dates matter when it comes to equitable distribution and alimony.

No doubt you already understand that there are some time considerations when it comes to filing for a divorce in New Jersey. For example, NJSA 2A:34-2 states that desertion is a grounds for divorce – provided that there is proof that the couple hasn’t lived together for at least 12 months.

Until no-fault provisions were added to the marital dissolution statute, many couples filed for cause based on separation. The requirement continues to be that the couple lives apart for at least 18 months – without any chance for reconciliation.

Meanwhile, there’s an interesting phenomenon.  Some husbands and wives remain separated after several decades and just never bother to file for a divorce. See how this type of scenario played out in a recent New Jersey Appellate Court unpublished decision.

Equitable Distribution and Alimony Award Challenged

Milcarsky v. Milcarsky was decided by the court on July 20, 2018.  Since the court considers this an unpublished opinion, it will not appear in case law books. Therefore, it is not precedential law – meaning the ruling only applies to the named parties.  Nonetheless, it provides an interesting perspective on challenging an equitable distribution and alimony award.

Mark and Karen Milcarsky were married in October of 1995. They did not have children together, although they lived with Karen’s children from another relationship. Prior to their separation in 2004, the couple bought a home together. Notably, a complaint for divorce was not filed until November of 2015. 

Seven months after Karen filed the divorce complaint, the court ordered Mark to pay her $250 weekly for pendente lite support.  During the trial that followed, the judge heard testimony regarding various issues.  Included were the marital lifestyle enjoyed by the couple, as well as asset accumulation and wage history.

It appears that Karen became chronically ill in 2002.  When the Micarskys separated in 2004, they agreed to sell the marital home. Mark, the sole breadwinner, paid off the balance of the loan on Karen’s vehicle. He also funded the rent and security for Karen’s new apartment. Additionally, Mark maintained Karen’s health insurance coverage and paid for her prescriptions for a long time after their separation.

The divorce trial focused on two specific issues.  The first dealt with the equitable distribution of Mark’s 401K account. Mark did not dispute that his wife was entitled to a portion of the accumulated funds. However, he said the numbers should be calculated based on the date of the couple’s separation.

Meanwhile, Karen’s attorney cited precedent that stated differently. According to Brandenburg v. Brandenburg, 83 N.J. 198 (1980), the date of the divorce complaint is used in determining equitable distribution. The court agreed with this submission and used it in calculating the 401K split, stating the following:

Unless the parties' agreement divided all significant assets, or alternatively contained a knowing and voluntary waiver of the right to the division of a significant asset, it will be insufficient to terminate the marital relationship. Because the 401(k) remains at issue here, a significant marital asset has not been divided in equitable distribution. Thus, the separation of the parties in this case cannot mark the end of [marital] property acquisition.

In determining the split of the 401K, the judge said the asset was “measured from the date of the marriage to the date of the complaint and adjusted for the increase or decrease in value during that time.”

Alimony Computation

During the trial, Karen testified that she only receives $600 monthly in disability payments, which comes nowhere near her needs of $2600 for monthly expenditures. On the other hand, Mark earns in excess of $155,000 annually. He is more than able to meet his monthly expenses.

After a review of the facts, the judge decided that Karen was entitled to open durational alimony as described in NJSA 2A:34-23. The twenty-year length of the marriage was cited as a determining factor.

Although Mark challenged using the date of the divorce complaint to set equitable distribution and alimony, the Appellate Division agreed with the lower court’s ruling.  Things might have been different had either of the parties filed for divorce earlier.

Contact Us

Not sure if there’s a “right” time to get divorced?  Contact the Law Offices of Sam Stoia to learn what should work best for your situation. We offer a free one hour consultation scheduled to your convenience.