A Divorce Court Prioritizes a Family’s Best Interests

New York Law Journal

At times, this author has noticed a certain level of dejectedness among matrimonial lawyers in the post-pandemic world, and that includes yours truly. The feeling stems from what many matrimonial lawyers have told me is a sense that our judicial system is understaffed, and in desperate need of more resources.

More specifically, I hear about (and experience) a growing number of motions that are left undecided, judgments of divorce that seem to take eons to get signed (and then entered), and clients who are, accordingly, left somewhat disillusioned by the process.

But most concerning is a sentiment I’ve started to hear recently, which is that the best interests of families are not being prioritized, and not out of any ill will, but simply because our judicial system is overwhelmed and cannot practically keep up with the relentless flow of divorce cases that enter the system daily.

Perhaps that is why, when I read Judge Victor G. Grossman’s recent decision in J.H. v. C.H., 2024 NY Slip Op 50220(U) (Supreme Court, Putnam County), I couldn’t help but smile in complete satisfaction from start to finish, because in this case, a divorce court did what we, as matrimonial lawyers, can only hope for: it prioritized the best interests of a family.

The parties in J.H. married in 2003, and had two unemancipated daughters. The marital home was occupied by the defendant-husband. A foreclosure proceeding was commenced in 2019, and another foreclosure proceeding was “once again pending” following another mortgage payment that the husband did not make.

The parties had “little or no equity in the marital home,” and the husband’s interim maintenance payments were “sporadic in frequency and amount.” There were “child support arrears as well,” and the husband, unemployed, claimed that he now had a job with an annual salary of $150,000.

Two issues were before the court: (1) “May the court, or should the court, impose upon a divorcing couple a 40-year mortgage to preserve a marital asset that lacks any clear value?” and (2) “May the court in the face of Kahn v. Kahn order a sale of the martial residence held as tenants by the entirety in the absence of a Judgment of Divorce?”

I will not devote any material amount of real estate to the first issue, as the answer is straightforward. As the court noted, “The likelihood of a future default by defendant will affect Plaintiff’s credit and ability to secure housing for herself and her children, especially when defendant is before the court unemployed or recently employed, without income, and not paying child support… It is difficult to find a cogent rational reason to support defendant’s request for a new 40-year mortgage on the marital home.” The husband’s application was denied.

Moving on to the second issue, the J.H. decision is laudable for several reasons: (1) the decision explains in great detail why blind allegiance to a decision of the Court of Appeals that is now nearly 50 years old is not consistent with the task of matrimonial courts, which is to achieve equitable results; and (2) the decision provides a must read history lesson that shines a light on how antiquated, “ancient” laws surrounding the “legal fiction” of marriage treated women abhorrently.

Kahn v. Kahn held that “unless a court alters the legal relationship of husband and wife by granting a divorce … it has no authority to order the sale of a marital home owned by the parties as tenants by the entirety.” Thus, the pendente lite sale of a marital home is in all likelihood out of the question, based on the holding in Kahn.

The J.H. decision reminds us that each divorce case stands on its own facts, and while Kahn remains the law of the land, there are times when the restriction embodied in Kahn may be contrary to a family’s best interests.

The court explains that the “concept of tenancy by the entirety” derives or is inextricably linked to a “rule” that is “based upon the unity of husband and wife,” which the court aptly notes is “very ancient.” In other words, in marriage, the original “rule” of tenants by the entirety left wives with no separate legal personhood; instead, under common law, husbands had full autonomy over “the rents and profits of his wife’s lands.”

However, “the ongoing evolution of married women’s rights to property and otherwise, grounded in a recognition of the wife’s separate legal identity, has over the course of time fundamentally altered the nature and legal incidents of the union of person in husband and wife in marriage upon which the tenancy by the entirety is founded.”

In the 19th century, a series of New York statutes “recognized the separate personhood of husband and wife as opposed to the union of person in husband and wife.” In that regard, a 1984 decision by the New York Court of Appeals observed that “New York had long ago rejected the common law doctrine that a married woman’s legal existence is incorporated and consolidated into that of the husband.”

It is this “dilution of the legal fiction of the union of person in husband and wife in marriage” that led the court in J.H. to conclude that “the foundation on which Kahn v. Kahn rests has been significantly weakened if not destroyed.” If, after reading that line of the decision, you feel the urge to spray a can of confetti into the air, you are not alone.

The Equitable Distribution Law, the court explained, “worked a sea-change in the legal status of the marital relationship. It defines the unity of husband and wife in marriage as consisting not of a union of person, but rather in an economic partnership.”

Commencing a divorce action “terminates the legal fiction of unity” and “Per Kahn itself, the continuing viability of a tenancy by the entirety post-commencement is seriously in question.” The decision goes on with prose that is continuously on point, and more forceful:

The legal fiction of unity as defined by the Equitable Distribution Law having been shattered by commencement of a matrimonial action, and one party’s uncontestable declaration that an irretrievable breakdown has occurred having rendered the marriage ‘dead’ in the eyes of the ‘No Fault’ divorce law and the divorce inevitable, the reasoning of Khan itself dictates that a tenancy by the entirety is at this juncture no longer viable.

In J.H., the mortgage on the marital residence was not being paid, “and if matters are allowed simply to take their course a foreclosure and the loss of whatever equity the parties may have in their home is inevitable. A sale pendente lite is needed to prevent the ongoing dissipation of assets and accumulation of unreasonable debt, and to preserve marital property—the equity in the home—for equitable distribution.” The court therefore ordered the sale of the marital residence “based on the circumstances presented and the needs of the parties.”

I urge you to consider the following excerpts from the J.H. decision, all of which reinforce why the facts of a particular case may, in fairness, support an outcome that is not in lockstep with Kahn.

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.

This court is not suggesting that the sluice gates for sales of marital property pendente lite be opened willy-nilly but, because the Legislature vested broad equitable powers to matrimonial judges under equitable distribution, those powers should permit a sale of a marital residence during the pendency if a balancing of well-known and often easily defined equities favor that result in the best interests of the family (emphasis added).

There is a wonderful book by Timothy Cotton titled The Detective in the Dooryard, Reflections of a Maine Cop. In that book, Cotton includes this line: “Rules—ruining everything since the beginning of time.”

Indeed, while there will of course be cases where a pendente lite sale of a marital home is not warranted, if the goal of New York divorce law is to achieve equitable results, then we ought not lose sight of what is in the best interests of a family—even if a general rule espoused in 1970s decisional law may suggest otherwise.

"A Divorce Court Prioritizes a Family’s Best Interests," by Alan R. Feigenbaum was published in the New York Law Journal on March 29, 2024.

Reprinted with permission from the March 29, 2024, edition of the New York Law Journal © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.