Anglin v. Anglin

Casey, J. (dissenting).

In our view, under the clear wording of Domestic Relations Law § 236 (B) (2) an action for a separation is a matrimonial action. Therefore, any assets acquired by defendant after the commencement by plaintiff of an action for a separation, and not otherwise the product of a sale or exchange of any marital property, should be considered separate rather than marital property (see, Lennon v Lennon, 124 AD2d 788).

Although, as the majority correctly states, an action for a separation does not terminate the legality of the marriage, such an action does end the economic partnership on which the principles of equitable distribution are based. Accordingly, we respectfully dissent from so much of the majority’s statement as holds otherwise.

Mercure and Crew III, JJ., concur with Levine, J.; Casey, J., and Weiss, J. P., dissent in an opinion by Casey, J.

Ordered that the order is affirmed, with costs.