Would you have a different position if the parties were already separated when the first complaint was filed, and the wife (my client and the party who would want the second complaint to control as she would get more) was already cohabitating with her new boyfriend.?
I want to argue for the later date, but I don't want to put forth a position that is not reasonable. Also, neither party has much money, there is only the pension and a lot of debt. But, if I can get her more, I want to do so.
Do you think the fact that they were already separated changes anything?
Gerri
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David, The NJ Supreme Court reversed the Appellate Division's ruling on that precise point, Portner v. Portner, 93 N.J . 215, 216, 460 A. 2d 115 (1983) . The Supreme Court cited Painter as controlling: "We adopted the Painter rule to avoid the necessity of the court and the parties spending inordinate amounts of time and money in seeking the ever-elusive date when their marriage truly ended." Hanan RE: Relation Back to First Complaint | | | Actually, amend that slightly -- just looked it up. Absent a written agreement to the contrary, the filing date of an FD complaint should NOT be used as the cutoff for e.d., since a judgment of separate maintenance isn't a "legal separation" (makes sense - parties still file taxes jointly, can share heath insurance, etc). I'd go tell the judge who said otherwise that she was wrong, but she's in the App Div now and could always change the law to make herself right :-)
The filing of a complaint for divorce that is dismissed for non-prosecution, though, IS a cutoff date. See Portner ( http://scholar.google.com/scholar_case?case=16619562447270225539 ); Husband filing complaint in Pennsylvania that was ultimately dismissed "signaled his rejection of marital ties and should be taken to mark the end of the marital partnership for the purpose of sharing in after-acquired property."
I wonder what the "correct" result would actually be when an FRO is issued? On the one hand, as a judge said, it's concrete evidence that the marriage is no longer viable (being prohibited from even communicating, etc). On the other, the mere entry of an FRO wouldn't "unlink" the parties for taxes or insurance purposes.
Anyway - first complaint is the date, I believe.
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David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
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