While our blog has focused exclusively on New Jersey family law since its inception almost 8 years ago (yes, it has been that long), we also focus our practice on New York family law.  We do not (yet) have a Fox New York-specific family law blog, so this blog will serve as a testing ground and forum, of sorts. Rather than start off with a light and feel-good topic (how many of those are there in family law anyway), this blog will delve right into a spouse’s request to have exclusive possession and occupancy of the marital home during the divorce proceeding (pendente lite).

house pic

By contrast to family courts in New Jersey, family courts in New York, pursuant to existing statute and case law, are more willing to grant one party exclusive possession of a marital residence during the divorce proceeding in the absence of domestic violence.  Parties, perhaps as a result, also more frequently make such request for relief in New York matters as compared to litigants in New Jersey matters. For starters, New York Domestic Relations Law 234 – Title to or Occupancy and Possession of Property, provides the fundamental authority for this type of pendente lite request:

In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question 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 of the respective parties.  Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and final judgment.

More simply, the statute provides that the family court judge can render a determination as to the possession of real property before final judgment, at the time of final judgment, after final judgment, or all of the above.  The request in each case will be analyzed based on the specific set of facts and circumstances at issue.  The nature of ownership of the real property in which sole occupancy is sought should have no bearing on the decision.

While such relief can be based on a need to protect the person seeking exclusive occupancy and/or the subject children, if any, it can also be based on a far more general standard that such occupancy is necessary to avoid marital/domestic strife.  The strife can be alleged to have an impact on the daily emotional well-being of the person(s) seeking relief.  The court will also consider alternative housing options for the moving party and non-moving party, as well as either party’s willingness to voluntarily pursue such alternative housing options. For example, exclusive occupancy may be appropriate if a non-movant spouse has voluntarily established an alternative residence and his or her return to the marital residence would cause the above-referenced “marital or domestic strife.”

Since the relief is requested in the midst of a divorce proceeding, there does have to be a greater basis for the request than simply unsubstantiated assertions of the parties’ inability to get along, or one party acting unreasonably towards the other.  The more specific the assertions, the better the chance of the request being granted.

Generally, a plenary hearing (ideally to occur in short order) with testimony should be held to render a determination on a pendente lite request for exclusive occupancy, resolving at such time competing affidavits and allegations between the parties.

Requesting exclusive possession and occupancy of the marital home, pendente lite, is not something that should be taken lightly.  While it is often requested, whether because the relief is actually appropriate or simply as a strategic maneuver in a custody dispute or to color the court’s view of the matter, it is something that should be carefully considered and discussed with legal counsel.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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*Photo courtesy of freedigitalphotos.net (attributed to suphakit73)

The immortal George Carlin once said, “That’s the whole meaning of life, trying to find a place for your stuff. That’s all your house is, just a place for your stuff while you go out and get more stuff.”
 
 
In the context of Family Law, the topic of personal property is rarely discussed and consistently dismissed by the court and counsel. It is clear that both view personal property as being simply stuff. In fact, it has been assigned multiple euphemisms to it in order to deflate its relative importance. We have all heard the dismissive terms: chachka; accoutrement; trinket; fixture; knick knack; and of course, whatnot- a word specifically designed to describe all the things the item is actually not. In addition, there is often such contempt for personal property that we have created an amalgamation, personalty, simply in hopes of accelerating the process of distributing it by reducing the length of the term, itself.

Continue Reading Personal Property: From Picayune to Precious, Distributing the Immaterial Possession

An interesting issue was recently considered by the Court in the case of Muller v. Muller. Specifically, the Appellate Division examined whether a husband could compel the sale of the marital home when he had conveyed his interest by way of deed about ten years earlier, but the parties’ Property Settlement Agreement (“PSA”) had provided for the husband’s continued ownership.

The parties in Muller were married for 17 years. When they divorced in 1990, they entered into a PSA, which, in part, provided as follows:

EQUITABLE DISTRIBUTION
A. Husband and Wife agree to divide equally the personalty . . . upon sale of the premises or child’s emancipation, whichever shall first occur.
B. Upon execution of contract of sale of the above premises, Husband agrees to put his interest in the marital home in trust for Child.
. . . .

REAL ESTATE
A. Husband agrees to pay the mortgage payments [on the marital home] . . . until the time that child graduates from college, or reaches the age of 22, whichever shall first occur[.]

The husband paid the mortgage from the time of the divorce until around 1999 when he defaulted on the payments. The mortgagee instituted foreclosure proceedings in or around July of 2000. In order to avoid foreclosure, the wife borrowed about $60,000 and refinanced the property. The husband executed a deed and conveyed the wife his ownership interest in the property for consideration of $50,000. As a result, the wife exonerated him of the debt the he had incurred by defaulting on the mortgage payments. At the point, the child was 21 years old and had graduated from college.

Continue Reading Did a Property Transfer Occur? Husband Could not Rely on the Property Settlement Agreement to Compel the Sale of the Marital Home Because the Deed Controlled.

Do I have to continue living with him during the divorce?  Can I force her to leave?  Can I just move out?  If I move out, can I take the children with me?  These questions arise during the course of almost every divorce proceeding, and the answers are often not what people want to hear.

In New Jersey, the general answer to whether you can "make" the other party leave the home during the divorce is "no," except if that other party commits an act of domestic violence that results in a restraining order.  Other than that, the options are limited.  For instance, there exists what is known amongst New Jersey family lawyers as "Roberts" relief, allowing a court to Order the removal of a spouse without an event of domestic violence, so-named after an older case that many courts choose to no longer even follow in light of current domestic violence laws.  We were recently successful in obtaining one spouse’s removal from the marital residence pursuant to Roberts, but the circumstances there were so severe that such relief was warranted to prevent irreparable harm from happening to the children. 

With such limited options, often the only choice for parties is to continue living together during the divorce.  If the parties are able to get along and co-exist, recognizing that children living in the home will potentially be impacted long-term by what goes on in the home during the proceedings, problems are less likely to arise.  By contrast, however, if the matter is acrimonious, there can be few things worse than having to live together, especially if the matter drags on for months, if not years.  During one matter in which we were involved, it took almost three years before the parties ultimately settled.  During that time, the parties continued to reside in the marital home together with their young children.  By the time the matter was complete, one parent had completely alienated the children against the other parent, reunification therapy was necessary and the parties were completely unable to be near each other, let alone communicate in a rational manner.  While filing a motion to address such circumstances is more than appropriate, there is only so much Court intervention can do when it is not there to oversee the day-to-day occurrences in the marital home.

Continue Reading LIVING TOGETHER DURING A DIVORCE – THE RIGHT DECISION OR THE ONLY CHOICE?