Justice Edmund M. Dane

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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

In his June 13th decision in E.J. v. M.J., Nassau County Supreme Court Justice Edmund M. Dane resolved the complex financial issues arising when a divorce action is commenced after a child begins attending a private university, but before the child turns 21 or graduates. The fact pattern presents a blend of Equitable Distribution and child support add-on issues.

Here, the parties were married in 1997 and had two children born in 2001: a son who by the time of the decision had turned 21 and had just graduated from Quinnipiac College and a daughter with developmental disabilities for whom the parties had agreed to adult dependent support.

The wife commenced this divorce action in May 2021. The parties entered a Settlement Agreement resolving most of their issues. However, issues of their son’s college education expenses and counsel fees remained to be decided upon written submissions.

The wife alleged that in the year prior to commencement of the action, the husband signed a series of Parent Plus loans for their son, totaling approximately $141,000. She argued that the Court should consider the husband’s financial ability to contribute to those expenses, as well as the academic backgrounds of the parties and the best interests of the child. The wife further contended that if she were to be obligated to contribute to the Parent Plus loans, her obligation should be capped at a SUNY rate. The wife maintained that there was no prior agreement between the parties regarding the payment of college expenses for their child.Continue Reading Apportioning a Child’s Pre- and Post-Divorce Action Commencement Private College Expenses