Divorce cases are supposed to have an ever-increasing set of rules. Last week’s decision of the Appellate Division, First Department, in Campbell v. Cambell demonstrates that while a judge must follow the rules, the judge still has many tools to accomplish an equitable result. Perhaps the most powerful is discretion.

In Campbell, the parties were married in 1973. After living together as husband and wife for only 52 months, the husband vacated the marital residence in 1978. The parties’ minor son remained with the wife. For the next 37 years, the parties lived separate and apart, the husband providing no economic or non-economic support to the wife and child.

In 2011, the wife retired from her job at Lincoln Hospital, where she began working in 1973, the same year as the marriage. She is now collecting $4,241.95 per month in pension benefits.

In 2013, the wife commenced this action for divorce. The wife’s pension was the parties’ primary marital asset. Supreme Court, Bronx County Justice Doris M. Gonzalez awarded the husband 50% of that portion of the wife’s pension that was accumulated during the 52 months the parties lived together. The husband appealed.

The First Department modified the award by determining that while the entirety of the wife’s pension would be marital property, the husband should only be awarded 1% of that asset.

The appellate court noted that marital property is:

all property acquired during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action. Thus, in the absence of a separation agreement, the commencement date of a matrimonial action demarcates the termination point for the further accrual of marital property.

Accordingly, the wife’s pension benefits from the date of marriage to commencement of the divorce action constituted marital property, subject to equitable distribution.

However, the First Department noted:

equitable distribution does not mean equal, and an unequal distribution is appropriate when a party has not contributed to the marital asset in question.

Given that the value of wife’s pension was due almost entirely to her sole efforts, the First Department awarded the husband as his distributive share 1% of the wife’s monthly pension benefits.

Perhaps not ironically, the husband actually took a giant step backwards on his appeal. The husband had been awarded by the trial court 50% of the living-together portion of the pension. Applying the Majauskas formula (used to determine the “marital” portion of a pension) the living together portion could be found to be some 11.84% (the parties lived together for 54 out of the estimated 456 months (38 years) the wife worked for Lincoln hospital). The husband’s 50% share of the living-together portion would be 5.92%. Applying its discretion to the rules of divorce the appellate court was able to reduce the husband’s award to 1%.

Carlos Gonzalez, of Gross & Gonzalez, LLC, of the Bronx, represented the wife.