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The Matrimonial 'Dating Game'

The Matrimonial 'Dating Game'

By Timothy M. Tippins, Esq. 

Originally 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. 

One such 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. 

Classification 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. 

A closely 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,[1]† 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' property. 

The Third Department, in O'Connell v. O'Connell,[2]† held likewise, stating: 

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 parties' property.[3]† 

In McAteer v. McAteer,[4]† 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 that controls.[5]† 

These holdings are consistent with the Court of Appeals determination made a decade ago in Anglin v. Anglin[6]† 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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