It was a fairly established principle in divorce law that the “term of the marriage” consisted of the number of years between the date of the marriage and the date someone files for divorce.  The years prior to the marriage, even where parties lived together or had children together, did not count except in very limited exceptional circumstances.  The concept, referred to as “tacking,” added the years of cohabitation prior to the marriage to the actual years of marriage for purposes of alimony or equitable distribution.  It is very much the exception in legal practice.  Being married, or not, had legal implications.

However, a New Jersey Supreme Court decision in the last few weeks may have cracked open the door to additional situations allowing for “tacking,” especially for equitable distribution purposes. In the case titled Thieme v. Aucoin-Theme, at issue was a $2.5 million dollar bonus that was substantially earned during the premarital cohabitation period.  The trial court had ruled that the Wife was not entitled to equitable distribution of same, and the Appellate Court had agreed.  The Supreme Court did not.

The Supreme Court ruled that because the family part is a court of “equity” it must consider equitable factors as well.  The law, it wrote, “is not to be applied in the abstract, but must be considered in light of the factual circumstances in an individual case.”  The court found that it would be unfair to exclude the Wife entirely from the bonus simply due to the timing of actual marriage.  Given the Wife’s premarital sacrifice in giving up her career in order to care for their daughter, her Husband had made a “financial commitment” to her and the family.  While the Wife had already been awarded a portion of the bonus deemed earned during the actual marriage, they sent the case back to the trial court to determine how much of the bonus earned during the premarital cohabitation would also be distributable to her.

This is a very significant and activist view of the equitable distribution statute. While it is not a complete departure from prior rulings on how to deal with “tacking” of years on to a marriage, It very broadly reads the divorce statute at N.J.S.A. 2A 34:21(h) to allow equitable distribution of assets acquired not only during the marriage, but also during a period of cohabitation. The implications are far reaching.