It’s one of my pet topics. How do you provide — how do you write a provision awarding one spouse credit for paying down the mortgage principal while a divorce action is pending or thereafter?

Consider the August 29, 2018 decision of the Appellate Division, Second Department, in Westbrook v. Westbrook.

In April 2008, the wife commenced this action for a divorce and ancillary relief. In a pendente lite order, the Supreme Court, inter alia, directed the husband to pay temporary child support in the sum of $150 per week. The court also directed the husband to pay a majority of the carrying charges on the marital residence, which included a first mortgage on the two-thirds share of the value of the marital residence that had been purchased from the husband’s siblings, as well as a home equity line of credit (hereinafter HELOC) that was secured by the marital residence.

On or about November 24, 2009, the parties executed a stipulation agreeing, inter alia, that the husband would have exclusive use and occupancy of the marital residence effective December 1, 2009, and that the husband would pay child support to the wife in the sum of $350 per week commencing on December 1, 2009. Thereafter, the wife moved, inter alia, to increase the husband’s temporary child support obligation. In a pendente lite order dated May 21, 2010, the Supreme Court directed the husband to pay $700 per week in temporary child support during the pendency of the action.

Following the trial, as is here relevant, Suffolk County Supreme Court Justice Marlene L. Budd declined to award the husband a credit for the payments made by him during the pendency of the action to reduce the principal balances of the first mortgage and the HELOC. In addition, the court directed that the marital residence be listed for sale, and that the husband make the payments towards the first mortgage and the HELOC if he continued to reside in the marital residence until the residence was sold.

Continue Reading Calculating Divorce Credits for Mortgage and HELOC Payments

Focused man paying his bills in the living room

The filing of a divorce summons commences the action and terminates the marital economic partnership. As noted by the Court of Appeals in Mesholam v. Mesholam, 11 N.Y.3d 24, 27, 862 N.Y.S.2d 453 (2008), that partnership is to be considered dissolved when a divorce action is commenced.

Retroactive to the first request for support, often contained in the divorce summons, itself, the trial court has the power to order both spousal and child support. It can also determine the parties’ relative responsibilities for marital residence carrying charges and other expenses.

In light of the trial court’s power to determine the parties’ rights and obligations for the period the divorce action is pending, what should be done if a party’s uses marital assets to pay living expenses accruing after the divorce action is commenced.

In its June 30, 2016 decision in Carvalho v. Carvalho, the Appellate Division, Third Department, held that marital assets may be used while a divorce action is pending to pay for legitimate household and living expenses without needing to later offset the division of those assets. Moreover, the burden is on the non-spending party to prove that the marital assets were not used for such “legitimate” purposes.

Continue Reading Charging a Party for Spending Marital Assets During the Divorce Action

House on moneyAdjusting the financial rights between divorcing spouses for the payment of marital residence carrying charges while the divorce action is pending can be problematic. Claims for such adjustments are not always made and the results may be affected by other issues. Calculation of the credits may be illogical.

In its September, 2015 decision in Goldman v. Goldman, the Appellate Division, Second Department, modified the judgment of now-retired Suffolk County Supreme Court Justice William J. Kent, on the facts and in the exercise of discretion, to award each party a credit against the proceeds of the sale of the marital residence for 50% of the amounts they each expended after the commencement of the action on carrying charges related to the marital residence. Justice Kent had awarded no such credits.

Generally, it is the responsibility of both parties to maintain the marital residence during the pendency of a matrimonial action. Where a party has paid the other party’s share of what proves to be marital debt, such as the mortgage, taxes, and insurance on the marital residence, reimbursement is required.

Here, while both parties paid certain carrying charges related to the marital residence after the commencement of the action, the husband had paid the vast majority of these expenses. Since these expenses should have been allocated on a 50/50 basis, the Second Department modified the judgment and remitted the matter for a determination of the amounts that each party expended after the commencement of this action on such carrying charges, and for the entry of an appropriate amended judgment thereafter.

Michael W. Meyers, of the Law Offices of Clifford J. Petroske, P.C., now Petroske, Riezenman & Meyers, P.C., of Bohemia, represented the husband. Elizabeth Diesa and Joy Jankunas, of Tabat, Cohen, Blum & Yovino, LLP, of Hauppauge, represented the wife.