The Matrimonial 'Dating Game'
Matrimonial 'Dating Game'
Timothy M. Tippins, Esq.
Published in The New York Law Journal 11/8/2002, p.3, (col. 1)
A review of
equitable distribution decisions in any given year can leave one reeling, if not
from the novelty of the holdings, then certainly from the frequency with which
certain fundamental issues are re-litigated with the predictability of the
perennials of springtime.
recurrent issue is the impact of a dismissed or discontinued matrimonial action
on the classification and valuation of marital property.
The context of
the issue is this: The matrimonial court, in administering the equitable
distribution statute must undertake a three-step process: (1) classify assets as
either marital or separate property; (2) fix the value of each marital asset as
of a designated valuation date; and (3) determine the distributive percentage of
marital property that each spouse will receive.
is governed by DRL § 236(B)(1)(c), which defines marital property as those
assets acquired between date of marriage and the date of commencement of "a
matrimonial action." Where a prior matrimonial action was dismissed or
discontinued and is then followed by a second action, the question becomes which
commencement date controls classification? If it is the earlier action, anything
acquired between the two commencement dates will be immunized from distribution.
If the latter action controls, those assets come into the marital estate.
related issue arises with respect to valuation. DRL §236(B)(4)(b) mandates that
the court set the valuation date for each asset "anytime from the date of
commencement of the action to the date of trial." As with classification,
the question is whether the commencement date of a prior unsuccessful action can
be used to shield value that may have accrued after commencement of the earlier
action but before commencement of the current action.
Recent Appellate Decisions
No fewer than
three appellate-level decisions have treated this issue in the past year.
In Cozza v. Colangelo,† the
Appellate Division, Fourth Department, held that plaintiff's previously
dismissed divorce action did not constitute a "matrimonial action" for
either classification or valuation date purposes. Such an action falls outside
the meaning of both DRL §236(B)(1)(c) and DRL §236(B)(4)(b) because it neither
ended the marriage nor resulted in equitable distribution of the parties'
Department, in O'Connell v. O'Connell,† held
the term 'matrimonial action' in Domestic Relations Law §236(B)(1)(c)
does not include an action which, by virtue of a dismissal or discontinuance,
neither terminates the marriage nor results in the equitable distribution of the
In McAteer v. McAteer,† the
Appellate Division reversed a trial court that used the commencement date of a
dismissed action as the terminal date for measuring the marital portion of the
husband's pension. Citing O'Connell, the Appellate Division held that:
This Court recently made it clear that the economic partnership of
a marriage will not end with the commencement of an unsuccessful matrimonial
action and that it is the date of commencement of the current successful action
are consistent with the Court of Appeals determination made a decade ago in Anglin v. Anglin† that
the commencement of a separation action does not close the marital estate
because it neither dissolves the marriage nor does it determine equitable
distribution rights. The court made clear that:
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