Breaking the Glass Ceiling That Surrounds the Marital Residence in Divorce
Whether it was fate or luck, on the same day that this author began a deep dive into Judge Richard Dollinger’s recent decision in D.R.D. v. J.D.D., 2021 NY Slip Op 21337—which directed the pendente lite sale of a marital residence—I also read the “Modern Love” piece by Jordana Jacobs in the New York Times titled “Our Kinder, Gentler, Nobody-Moves-Out Divorce.” While neither writing has any direct connection, both center on the singular asset that shapes the trajectory of so many divorces time and again: the marital residence.
Ordinarily in this column I will dig deep into the facts and circumstances that surround a particular judicial decision. Here, the facts and circumstances at issue in D.R.D. are not the focus. Rather, the focus is on the existential question posed by Judge Dollinger, namely, whether or not the long-standing directive by the Court of Appeals in Kahn v. Kahn, 43 N.Y.2d 203 (1977) is, in 2022, in need of a reboot of sorts.
Kahn, which remains the law of the land in New York, prohibits judges from ordering the pendente lite sale of real property owned as tenants-by-the-entirety. An exceedingly narrow exception concerns the scenario wherein the marital residence is in danger of imminent foreclosure; hence, a pendente lite sale would be appropriate to potentially avoid immediate financial ruin.
Matrimonial law presents itself as concerned, first and foremost, with the “equities”—a fancy way of saying that fairness should rule the day. Yet, when it comes to the marital residence, strict adherence to Kahn has instead trumped even a discussion about what the practice of matrimonial law would look like if courts had more authority vis-à-vis the marital residence on a pendente lite basis.
That is exactly what Judge Dollinger touches upon in D.R.D. when he writes:
Kahn exposes an anomaly in New York marital law. Under Kahn v. Kahn, a trial court cannot balance the equities of all the family—children included—in deciding whether to sell the marital residence while a no-fault divorce is pending but the same court can balance the same equities in deciding exclusive use and possession of the property during the pendency and can apply the same equitable factors in the judgment of divorce or any post-judgment decision.
Indeed, the contrast between Kahn and the overall concept of “courts of equity” in domestic relations matters presents something along the lines of a square peg in a round hole scenario where logic does not prevail. The decision continues:
It is illogical that the New York trial courts would have broad powers to balance the equities of a family to decide possession of property during a divorce, ownership of the property after the divorce but not have the power, when balancing the same equities, to order a sale during the pendency of the divorce. The equitable factors in play during the divorce—the cost of maintaining and staying in the house, the financial strain on either spouse or the family overall, the impact of mortgage and tax costs, the income tax consequences of keeping the house and who gets the tax benefits, the consequences to and need for stability for the children, the availability of reasonable alternative housing for any displaced spouse—are the same factors that New York matrimonial courts have weighed in the four decades since equitable distribution.
How many times has the matrimonial practitioner seen his or her client’s spouse refuse to list the marital residence for sale pendente lite? I will safely assume the answer is many times. Worse, while there may well be times when there exists a legitimate reason for such refusal, too often we see the spouse who refuses sale because he or she knows that the marital residence can be used as a weapon or tool in a ploy to drag out litigation or otherwise try to force the other spouse to a proverbial settlement table that is devoid of food and drink, i.e., you can accept my dismal settlement proposal or the house can continue to sit idle (and off the market).
Jacobs wrote in her “Modern Love” piece as follows: “When I was a child in the ’80s, divorce meant war. If children weren’t the weapons, they were the casualties. Custody battles. Friends choosing sides. Lawyers as strategists, generals.” In contrast, she writes: “These days, we have our mediators. We get to keep our friends. We don’t abuse our children with hate. It’s a kinder and gentler time.”
And yet, while Jacobs describes today’s divorce system as being amidst a “kinder and gentler time,” when I asked her what led her to seek out the arrangement whereby she and her former husband live on separate floors of the same home, her answer was this: “I found the system is too inflexible, not plastic enough to mold itself around real life.”
It seems irreconcilable that an entire body of law that is premised upon balancing equities is still perceived by those that come face to face with it as not flexible enough to “mold itself around real life.” But perhaps that is to be expected when Kahn remains in force more than 40 years after the decision came down.
This article is not designed to figure out whether the D.R.D. decision is “right” or “wrong.” It is, however, designed to simply open the door to a conversation about Kahn and its applicability/relevancy circa 2022. Perhaps that is what Judge Dollinger had in mind when he wrote the decision. As Springsteen sings it, “you can’t start a fire without a spark.” Maybe D.R.D. will be the spark that is needed to reevaluate whether or not fairness indeed rules the day in all facets of matrimonial law and practice. Time will tell.
“Breaking the Glass Ceiling That Surrounds the Marital Residence in Divorce,” by Alan Feigenbaum, was published in the New York Law Journal on March 4, 2022. Reprinted with permission.