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In the April 15th decision in FR v. AR, Nassau County Supreme Court Justice Edmund M. Dane ordered the pendente lite sale of the marital residence titled in the husband’s name after foreclosure proceedings had been commenced. The Court elected to preserve the asset by ordering the immediate sale, as the equity in the house was simply more important than the actual structure.

Last week’s post discussed the April 10th decision of the Third Department in Angello v. Angello, which upheld the trial determination that a wife’s refusal to approve a mid-action sale of the husband’s insolvent business constituted a wasteful dissipation of the largest marital asset. I asked whether the lower court could have simply approved the sale.

Here, to provide authority for the sale, Justice Dane wrestled with the 1977 (pre-Equitable Distribution) decision of the Court of Appeals in Kahn v. Kahn. There, it was held that while D.R.L. §234 authorized a court to decide questions of title, it did not authorize the sale of a marital residence held as tenants by the entirety unless there had been a change in a couple’s marital status that changed the interests of the parties to tenants in common. In the absence of a change in marital status, there could be no question of title between the parties, as the law treated tenants by the entirety as a single person. Nonetheless, the fiction is not applied when recognizing that a tenant by the entirety has the power to mortgage their interest. The Court also noted that prior to the enactment of D.R.L. §234 and its predecessor Civil Practice Act §1164-a, “no authority existed to permit a court to adjudicate a real property right in a marital action.”

Justice Dane held that Kahn did not preclude a sale and on the facts before the Court, an immediate sale was necessary.

The parties married in 2007. The marital residence was acquired after the parties’ marriage and prior to the commencement of this action. Title was taken solely in the name of the husband. The husband commenced this matrimonial action in May 2023 and stopped making mortgage payments in July 2023. The mortgagee bank commenced a foreclosure action on March 28, 2024.

The wife made a pendente lite application to sell the marital residence.Continue Reading Court Orders Pendente Lite Sale of Marital Residence

Please indulge me; it’s one of my pet issues. And I apologize in advance for what may be my most boring blog post to date.

Writing math narratively is very difficult. When drafting a divorce settlement agreement, I try to include examples whenever formulas are written out. When reading decisions, I often draw a flow chart to help me follow the calculations.

Calculations done by the court establish rules of law. When an appellate court does it, that’s the way it’s going to be done in all cases like that in the future. All the more reason that the reader be able to follow and understand the calculations made by the court. For each calculation, you need to know how much went from where to where and why.

Sometimes, I can’t follow those calculations made by the court. Take the February 26, 2020 decision of the Second Department in Alliger-Bograd v. Bograd. The Court modified the equitable distribution credits awarded by retired Suffolk County Supreme Court Justice Carol MacKenzie; reducing from $81,829.15 to $23,350.00 the amount to be paid by a husband to the wife, in addition to the wife acquiring the husband’s interest in the marital residence.

I am not sure whether the decision provides all the numbers used to get to the final result. The marital residence being acquired by the wife was worth $545,000.00 There was a mortgage and a Home Equity Line of Credit (HELOC) that totaled $321,000.00. At first look, there was $224,000.00 in equity.Continue Reading Math in Divorce Decisions: How Much Goes from Where to Where and Why?

The failure of the now-deceased wife to disclose that she was suffering from terminal cancer at the time the parties entered their divorce settlement agreement was not a basis to set aside that agreement. So held the Appellate Division Second Department in its August 28, 2013 decision in Petrozza v. Franzen.

Richmond County Supreme Court Justice John A. Fusco had granted summary judgment dismissing the complaint in the husband’s plenary action to rescind the agreement brought against the executors of the wife’s estate. The husband had alleged that his wife had fraudulently and actively concealed her illness. That illness resulted in the wife’s death after the execution of the settlement agreement, but before the entry of a final judgment of divorce.

Affirming that dismissal, the Second Department noted that to demonstrate fraud, a plaintiff must show that the defendant “knowingly misrepresented or concealed a material fact for the purpose of inducing [him] to rely upon it, and that [he] justifiably relied upon such misrepresentation or concealment to his . . . detriment.”Continue Reading Concealing Terminal Cancer Not Basis to Invalidate Divorce Settlement