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

The “Voluntary Payments” clause of the parties’ divorce stipulation of settlement prevented an ex-husband from using his non-required payments as an offset against his unpaid obligations. So held the First Department in its January 28, 2014 decision in Trepel v. Trepel. Doing so, the appeallate court affirmed the order of New York County Supreme Court Justice Lori S. Sattler that had awarded the ex-wife $38,994 in arrears for unpaid cost-of-living increases in child support and distributive award interest, plus $2,500 in counsel fees.

The “Voluntary Payments” clause provided that “[a]ny payments made by either party to the other . . . shall not alter that party’s legal obligations hereunder (except to the extent it discharges or satisfies such obligations), nor create any precedent for the future.”

The First Department held that this clause clearly and unambiguously expressed the intent of the parties. Since the payments to the ex-wife that the ex-husband was not obligated to make, however generous, did not satisfy any of his obligations under the stipulation, he remained liable for the unpaid COLA increases and distributive award interest required by the stipulation.

A July 12, 2013 decision of Justice Sattler in this matter held that the fact that the father set his daughter up with her own apartment when not away at college could not be used by the father as a basis to discontinue making child support payments to the mother. That decision in Trepel v. Trepel, was the subject of my July 24, 2013 blog post. It is not stated whether the payments for the apartment were the voluntary payments made by the ex-husband which could not be used to offset other obligations.

Peter Bienstock, of Hennessey & Bienstock, LLP, of Manhattan, represented the ex-husband. Michael W. Appelbaum, of Grant & Appelbaum, P.C., of Manhattan, represented the ex-wife.