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1995 National Legal Research Group, Inc.

NEW HAMPSHIRE: Holliday v. Holliday, ___ N.H. ___, 651 A.2d 12 (1994).

The trial court's refusal to award the wife any part of the lottery jackpot that the husband won during the parties' separation was not an abuse of discretion.

The parties married in 1984 and separated in 1989. The wife filed for divorce shortly after the separation. Nearly three years later, the husband won approximately $734,000 in the New Hampshire lottery. The trial court in the parties' divorce action awarded the wife one-half of the pension benefits the husband accrued during marriage and a share of other assets but none of his lottery winnings. The wife appealed.

The New Hampshire Supreme Court held that the decision not to award the wife any of the lottery winnings was not an abuse of discretion. The winnings were marital assets, the court acknowledged, because under the state equitable distribution statute, marital property includes any property acquired up to the date of a decree of legal separation or divorce. The court also acknowledged that the statute presumptively requires an equal division. But if the trial court determines an equal division to be inappropriate after considering the parties' property in its entirety and the enumerated statutory factors, it may find that equitable distribution of a marital asset means awarding it in whole to one party, the court declared.

Here, the court noted, the trial court cited the short duration of the marriage, the fact that the parties had no children together, and the circumstances surrounding the purchase of the lottery ticket as factors that made it equitable to award the winnings entirely to him. Those factors supported the distribution, the court agreed.

Cases Elsewhere. The court in Holliday decided that the winnings were marital property because they were acquired before divorce. In other jurisdictions where the marital estate includes property acquired up until the date of divorce, courts have likewise refused to classify lottery winnings as separate property merely because one spouse purchased the winning ticket during separation. See, e.g., Lynch v. Lynch , 164 Ariz. 127, 791 P.2d 653 (Ct. App. 1990); Alston v. Alston , 331 Md. 496, 620 A.2d 70 (1993); Giedingham v. Giedingham , 712 S.W.2d 711 (Mo. Ct. App. 1986).

In jurisdictions which use separation as the endpoint for acquisition of marital property, lottery winnings from a ticket purchased during separation are the separate property of the spouse who purchased the ticket. Dyer v. Dyer , 370 Pa. Super. 377, 536 A.2d 453 (1988); cf. Pletz v. Pletz , 71 Wash. App. 699, 861 P.2d 1081 (1993) (even though property acquired during the marriage is normally considered to be part of the divisible estate, postseparation lottery winnings were the wife's separate property because the couple's marriage had become defunct).

In jurisdictions where lottery winnings acquired during separation are marital property, courts are not in accord whether the spouse who did not purchase the ticket should nevertheless be awarded some share of it. Compare Lynch v. Lynch, supra (affirming judgment which awarded wife one-half of jackpot that husband won during separation) and In re Marriage of Morris , 266 Ill. App. 3d 277, 640 N.E.2d 344 (1994) (where husband purchased a winning lottery ticket long after the parties separated but while they were still married, the trial court erred by refusing to award the wife any portion of the husband's lottery winnings) with Alston v. Alston, supra (reversing equal division of winnings from lottery ticket which husband purchased during separation and holding that wife was not entitled to any portion of prize) and Holliday v. Holliday, supra (refusal to award the wife any part of the lottery jackpot that the husband won during the parties' separation was not an abuse of discretion).

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