New York Court Discusses Sale of Marital Residences in the Pendency of Divorce

People who are married typically are not only connected emotionally and legally but financially as well. While divorce severs such ties, if they disagree over how their finances should be handled during the pendency of a dissolution proceeding, it can become complicated, and they may seek a resolution from the courts. For example, a New York court recently analyzed whether it could compel the sale of a marital home while a divorce is pending, ultimately finding that it could. If you intend to end your marriage, it is wise to confer with a New York divorce attorney regarding your rights.

History of the Case

It is reported that the husband and wife were married and had two daughters, one of whom has special needs and requires ongoing care. Throughout their marriage, they enjoyed a lavish lifestyle, supported primarily by the husband’s income from a manufacturing enterprise and some financial assistance from the wife’s parents. The wife primarily served as a homemaker but later took a flexible sales position.

It is alleged that financially, the couple faced significant challenges. The marital home was at risk of foreclosure due to missed mortgage payments, despite a previous attempt to prevent foreclosure by the husband. The husband filed a motion to compel the wife to execute a mortgage on the marital residence, while the wife filed a motion to compel the sale of the marital residence.

Sale of Marital Residences in the Pendency of Divorce

First, the court scrutinized the circumstances and found no compelling reason to compel the wife to execute such a mortgage. The husband’s argument rested on the notion that the wife had previously been willing to do so in a foreclosure proceeding, but the court determined that the current situation differed significantly. The wife expressed a strong reluctance to have any financial ties with the husband due to his alleged financial games and maneuvers. Moreover, the court recognized the potential harm to the wife’s credit and ability to secure housing for herself and her children in the event of a future default by the husband, especially considering his unemployment status and failure to pay child support.

Moving on to the potential sale of the marital home during the divorce proceedings, the court revisited the precedent set forth in Kahn v. Kahn, which established limitations on the court’s authority to order the sale of real property held by spouses as tenants by the entirety before the entry of a Judgment of Divorce. However, the court also acknowledged the evolution of matrimonial law, particularly with the enactment of the Equitable Distribution Law and the introduction of “No Fault” divorce.

The court then analyzed how these legal developments had altered the landscape of matrimonial law, shifting the focus from the unity of spouses to the economic partnership aspect of marriage. In light of these changes, the court questioned the continued viability of the restrictions outlined in Kahn v. Kahn, arguing that the Equitable Distribution Law and “No Fault” divorce statutes had fundamentally altered the legal fiction of unity upon which tenancies by the entirety were based.

Furthermore, the court examined the impact of the Automatic Orders introduced in 2009, which regulated the disposition of property during divorce proceedings. It argued that these orders provided the court with enhanced flexibility to address financial issues and promote the goals of equitable distribution.

Ultimately, the court invoked its authority under the Equitable Distribution Law and the Automatic Orders to order the sale of the marital residence based on the circumstances presented and the needs of the parties.

Meet with a Skilled New York Attorney

Disagreements over finances cause many people to seek a divorce, and it is important for anyone considering ending their marriage to understand how it may impact them financially. If you are contemplating seeking a divorce, it is smart to meet with a lawyer to evaluate your options. Ksenia Rudyuk is a skilled New York divorce attorney who can assess your case and help you take the measures necessary to protect your interests. You can contact Ms. Rudyuk by calling 212-706-2001 or using the form online to arrange a conference.

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