“The home should be perceived as a microcosm of the universe. “

- Rebbe Menachem Mendel Schneerson.

 In many, if not most, of my divorce cases the asset of greatest value is the marital residence. The marital home possesses monetary value, sentimental value and practical value. The main provision in New York law, concerning the marital residence, are contained in Sections 234 and 236 (B) (5) (f) of the Domestic Relations Law.

Sections 234 provides as follows:

“In any action for divorce……..the court may (1) determine any questions as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court’s discretion justice requires having regard to the circumstances of the case and the respective parties.”

Section 236 (B) (5) (f) provides that:

“….the court may make such order regarding the use and occupancy of the marital home and its household effects as provided in section two hundred thirty-four of this chapter, without regard to the form of ownership of such property.”

One of the most heavily litigated issues is over who gets to reside in the marital residence These issues exist both during ongoing divorce proceedings, and as part of the final disposition of the case.

Possession of the marital home
during the divorce proceedings

 Due to the significant tension which accompanies divorce litigation, parties will often separate their living arrangements in the early stages of a case. However, it is not uncommon to have a situation where neither party is willing to leave the marital residence while the case is pending. The legal standard which governs the removal of a spouse from the home while the divorce is pending is set forth in a case entitled Amato v. Amato.

The parties in Amato resided in the marital home in Brooklyn. The husband had left the home, but he was unwilling to agree to the wife’s continued exclusive occupancy of the premises during the divorce proceedings. Here, the court indicated that exclusive occupancy of the home could be granted only upon a showing of either of two scenarios. That is to say that the wife must demonstrate either that (1) exclusion of the husband from the home was necessary to ensure the safety of persons or property or (2) that the husband had voluntarily established an alternate residence, and his return to the marital home would cause domestic strife.

Based upon the acrimonious relationship between the parties, the fact that the husband had established an alternate residence, and the likelihood of turmoil upon his return, the court granted the wife exclusive occupancy of the home during the divorce proceedings.

Another Brooklyn case dealing with the issue of possession of the marital home during ongoing proceedings is entitled Taub v. Taub.  Here, the court did not believe the wife’s allegations that the husband had engaged in domestic violence. Her request for exclusive occupancy of the marital residence was denied. However, in an interesting twist, the court took some action to ensure the parties’ safety. This involved ordering the husband to erect a wall within the residence to provide separate living arrangements for the parties. The power of the trial court to make such a directive was affirmed on appeal.

Possession of the marital home
following trial

Often the parent who receives custody will seek the right to remain in the marital residence for a period of time after trial. This request is often tied into a child’s graduation from school.

In Bernard v. Bernard, a case out of Nassau County, the court succinctly set forth the standard to be applied in determining such applications for extended exclusive occupancy. In such situations, the court must consider (1) the needs of the children (2) whether the noncustodial parent is in imminent need of the proceeds from the sale of the home, (3) whether comparable housing is available to the custodial parent in the area at a lower cost, and (4) whether the parties are capable of maintaining the residence.

In Albertelli v. Albertelli, a divorce case out of Upstate New York, the wife sought exclusive occupancy of the marital residence until the younger of her two children had reached the age of 18. This request was denied by the trial court, but later reversed on appeal. The appellate court determined that the wife should be allowed to remain in the home until the youngest child had turned 18. This determination was based on the fact that the wife could not afford alternative housing, and there was no showing that either party had an immediate need to obtain their share of the equity in the home.

In Sinanis v. Sinanis, a Westchester County divorce, the wife was granted custody of the children and wished to remain in the marital residence thereafter. In granting the wife’s request, the court provided that she and the children would remain in the home until the youngest child reached the age of 18. The court noted that the husband had not met his burden of showing that he was in immediate need of his share of the proceeds which would be realized upon a sale of the home.

Certain court decisions have involved findings that the sale of the home should not be delayed. For example, in Blackman v. Blackman, the court denied the wife’s request for an extended exclusive occupancy of the marital residence. This was a case out of Nassau County. At the time of trial, the parties’ son was approximately 8 years old. The parties had apparently incurred a large amount of debt, which they were having difficulty repaying. The court ordered the immediate sale of the home due to the financial needs of the parties. This was based upon a finding that the parties could not meet their living expenses without the receipt of funds which could be obtained only from an immediate the sale of the marital residence. Thus, the parties’ need for liquidity outweighed the benefits which would result from the wife and child remaining in the residence.

Another court decision where exclusive use and occupancy was denied can be found in a divorce proceeding entitled Ricciardi v. Ricciardi.  In this case, the children were of college age. The court noted that the children were no longer in the “vulnerable tender years of their lives”, such that a sale of the marital home would not greatly affect them. Moreover, the parties needed to use the proceeds of sale of the home to pay for the children’s college educations. Accordingly, the parties were required to proceed with an immediate sale of the marital residence.

Another case where exclusive occupancy was approved, the court based its decision, in part, upon the husband’s lack of candor. This case, entitled Skinner v. Skinner, concerned a wife residing in the marital home with two children ages 12 and 6. The trial court directed the immediate sale of the home. The wife appealed and the trial court’s decision was reversed. In reaching its determination, the appellate court noted that the husband had concealed his true income and his business relationship with his employer. Based upon this deceitful conduct, the appellate court would not accept the husband’s claim that his financial situation was strained or that he was in immediate need of his share of the sales proceeds.

Exclusive Occupancy
must be for a reasonable period of time

Sherman v. Sherman, a case out of the Staten Island courts, deals with the issue of what to do when there is no time limitation on a party’s right to occupy the marital home. In this proceeding the parties had reached a written agreement providing that the wife and children would remain in the marital home after the judgment of divorce was rendered. However, no time limit was imposed upon the wife’s extended period of occupancy. The husband sought to end the wife’s possession of the home after a period of 11 years. The wife wished to remain in the home without a time limitation.

In ruling in favor of the husband, the court decided that, where no express time limit was imposed, the agreement must be construed to limit the wife’s stay for a period of reasonable duration. Since the parties’ youngest child was by this time emancipated, the court terminated the wife’s exclusive occupancy of the premises forthwith.

Exclusive Occupancy
where no claim to ownership of home

Another interesting factual scenario can be found in a case out of Nassau County entitled Graziano v. Graziano. Here, the wife had no claim to ownership of the home, which was the husband’s separate property. Since the wife had no interest in the home as an asset of the marriage, the husband argued that she had no right to extended possession of the property. Notwithstanding these facts, the wife was permitted extended occupancy until the parties’ youngest child reached the age of 18. In support of its determination, the court focused on the language of Domestic Relations Law Section 236 (B) (5) (f) (cited above) which distinguishes between rights to ownership and rights to possession of the marital residence. The fact that the wife had no right to own the home did not prevent her from occupying the home.

As you can see, these battles over possession of the marital home often contain complex questions of fact and law. It is important that divorce litigants secure proper representation from experienced counsel.

 By Mark Plaine, Esq.