Law Lessons from DAVID PIPITONE V. DINA PIPITONE, App. Div., A-0449-08T3, October 27, 2009:

Divorce from bed and board is New Jersey’s statutory version of legal separation. See Mueller v. Mueller, 95 N.J. Super. 244, 247 (App. Div. 1967). Upon later application to the court, either party has an absolute right to convert the bed and board divorce into a “divorce from the bonds of matrimony.” N.J.S.A. 2A:34-3.

For and during the time that any judgment for divorce from bed and board . . . shall remain in force and effect all property rights of the parties shall be as though a judgment of absolute divorce or dissolution had been entered. [N.J.S.A. 2A:34-6.]

As the court indicated in Muller, supra,

N.J.S. 2A:34-6, was enacted to clarify the property rights of parties to a judgment of divorce from bed and board. The statute provides that while such a judgment remains in force all property rights of the parties shall be as though a judgment for absolute divorce had been entered.

[Muller, supra, 95 N.J. Super. at 248.]

In other words, while they are divorced from bed and board, each party may acquire property free of the rights that the other party would have in that property if they were not divorced. For example, in Lavino v. Lavino, 23 N.J. 635 (1957), the Supreme Court rejected a wife’s claim to inchoate dower rights in property her husband purchased after the parties obtained a divorce from bed and board:

N.J.S. 2A:34-6 represents a statutory alteration [from the common law]. It seeks to abolish any marital property rights of spouses who have obtained a limited divorce. In brief, dower and curtesy are barred “for and during the time that any judgment for divorce from bed and board shall remain in force and effect.” . . . [T]he right is simply prevented from arising upon property acquired after the enactment [of the statute].

[Id. at 639-40.]

Likewise, the court has held that a divorce from bed and board precludes a wife from inheriting her husband’s property when he dies intestate. See In re Friedman’s Will, 83 N.J. Super. 116, 119 (App. Div. 1964).

In light of its purpose, as well as its wording, N.J.S.A. 2A:34-6 does not mandate that an award of alimony, entered years after the bed and board divorce, must be deemed retroactive to the date of the bed and board divorce order. See Blaine v. Blaine, 96 N.J. Super. 460, 462 (Ch. Div. 1967) (“Alimony is for the personal support of the wife. It is not a property right.”) In fact, to the very limited extent that the issue of alimony has been addressed in this context, the court’s decision in DeAngelis v. DeAngelis, 122 N.J. Super. 48 (App. Div. 1973), suggests that an alimony award entered upon conversion of a limited divorce into an absolute divorce, will be prospective. There, the court held that an action to convert must be filed through a new complaint and not by motion in the old “bed and board divorce” docket. The court also indicated that if one party files a conversion action, the other party may seek to revisit alimony and other financial issues:

If defendant … desires to convert the judgment for present limited divorce entered against him into one of absolute divorce under N.J.S.A. 2A:34-3, he must institute a plenary action to do so. Of course, if he elects to move under the statute in this manner, plaintiff … will be free to establish that she is entitled to a revision of whatever property agreement exists between the parties, including such items as alimony, dower and equitable distribution of property.

[Id. at 49-50.]

See related Blog Post, by Robert A. Epstein, Esq. of Fox Rothschild LLP.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

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