Decided: March 20, 1973.
PASQUALINO SIBILIA, PLAINTIFF,
MARY CARMELA SIBILIA, DEFENDANT
[123 NJSuper Page 212]
Plaintiff secured an uncontested divorce. Subsequently defendant moves to reopen so that she may be awarded equitable distribution of the property which was legally and beneficially acquired by the parties during the marriage. N.J.S.A. 2A:34-23. The statute, in pertinent part, reads;
In all actions where a judgment of divorce * * * is entered the court may make such award * * * to the parties * * * to effectuate an equitable distribution of the property * * * legally and benefically acquired by them * * * during the marriage. [Emphasis added]
The language of the statute emphasizes the present tense of the verb in relation to the time of entry of judgment. The language of the statute in other sections -- e.g. , alimony, increase thereof for cause, institutionalization -- is not restrictive of court action in futuro , initial or by way of modification. That language is completely permissive.
The court can only act to distribute equitably property acquired during the marriage if the prayer for that relief is before it at trial.