In some instances the most vexing question facing a client is not if to get a divorce, but rather, when to commence the formal proceedings. Whether this issue of timing is the result of concern over when to “make it official” or just a matter of indifference because the spouses have already “separated”, the date on which the complaint for divorce is filed does have legal and practical significance.
Most importantly, the date on which a divorce complaint is filed is presumed to be the “cut-off date” for purposes of determining the allocation of marital assets and debts–the process known as “equitable distribution.” In other words, all marital assets which are accumulated prior to the filing of the complaint for divorce are presumably subject to equitable distribution. Perhaps the starkest example would be the purchase of a winning lottery ticket the day before the filing of the divorce complaint–yes, these winnings would presumably be subject to equitable distribution in a divorce, whereas if the lottery ticket had been purchased after the filing of the complaint for divorce with post complaint earnings, those winnings would presumably not be subject to equitable distribution.
On a more practical level, the marriage cut-off date is critical in determining the portion of retirement assets which are subject to equitable distribution, especially where there may be post complaint contributions to that asset.
Of course, the determination of the cut-off date is equally important with regard to the calculation of marital debt. For example, continually accruing credit card debt of one spouse will presumably be attributable to both spouses until the filing of the complaint for divorce. In other words, just because the spouses have “separated,” that may not absolve one spouse of the accrual of debt by the other spouse.
There are other reasons why the marriage end date may matter and, in some instances, even in the absence of filing a complaint the parties may designate a cut-off date by agreement so as to help establish clarification of the financial obligations between spouses who, for many reasons, may not yet have filed for divorce.
As the saying goes, timing is everything. If you feel that the time is right to discuss any questions or concerns you may have about divorce, our experienced team of matrimonial lawyers will take the time to talk to you.