Pendente Lite

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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

A spouse’s pre-divorce judgment death results in the unenforceablitity of divorce action orders, including the automatic orders mandated by Domestic Relations Law §236(B)(2)(b). As a result, Westchester County Supreme Court Justice Paul I. Marx held in his April 17, 2014 decision in A.V.B. v. D.B. that a husband was without a remedy for his wife removing the husband as a beneficiary of her retirment account and life insurance policy.

After 13 years of marriage and two children, the wife commenced this divorce action on September 12, 2012. Pursuant to stipulated Preliminary Conference Orders, it was agreed that the wife would be awarded the divorce on the grounds of irretrievable breakdown, an Attorney for the Child was appointed and the pre-trial schedule was fixed.

On April 22, 2013, the wife committed suicide. During the administration of her Estate, it was learned that on February 14, 2013, while the divorce action was pending, the wife had changed the named beneficiaries on her ING 403(b) account from her husband as her sole beneficiary to the parties’ two children as 50% primary beneficiaries. It was further discovered that on or about March 10, 2013, the wife changed her designation of the husband as the sole named beneficiary on her Prudential life insurance policy to the husband as a 1% primary beneficiary, the parties’ daughter K. as a 49% beneficiary and daughter R. as a 50% beneficiary.

The husband’s counsel then submitted a letter to Justice Marx with a proposed order directing that the named beneficiaries on the wife’s ING account and Prudential life insurance policy revert back to the date of the commencement of the action and directing ING and Prudential to pay out the balance in the wife’s annuity and the “death benefit” under her life insurance policy to the named beneficiaries that existed before the changes were made. At that time, the husband’s lawyer also submitted the supporting affirmation of the attorney for wife’s Estate, declaring that the Estate consented to the proposed order.

Justice Marx declined to sign the proposed order. Instead, the Court scheduled a conference at which the Court directed defense counsel to move by Order to Show Cause. Although no papers were submitted in response to that motion, Justice Marx nevertheless denied it. The relief sought in the motion was not warranted by the law, nor by a good faith extension of the law.

While it is regrettable that Plaintiff violated the automatic orders and seems to have reached beyond the grave to thwart Defendant’s efforts to recover his share of her assets, this Court is unable to remedy the violation in this proceeding.

Continue Reading Automatic Orders, Violated During Divorce Action, Cannot Be Enforced After Pre-Judgment Death

canceled stamp.jpgIs it proper, at the conclusion of a divorce action, to offset pendente lite child support arrears against the support obligor’s right to receive a share of the custodial parent’s pension or other deferred compensation plan assets?

That question was apparently answered in the affirmative by the Appellate Division, Third Department, in its October…