This is one instance where size doesn’t matter. Any apartment or house typically seems too small when a couple cohabits during a divorce.
People develop strong attachments to their homes. The attachment can be even stronger in the face of a major life event like a divorce, which often tends to cause people to hold onto what they have even harder. Case in point, let’s take a look at the RHONY and how Sonya clings to her Upper East Side townhouse despite the questionable plumbing.
So what happens if a couple is going through a contentious divorce? Who gets to stay in the house? In some cases, a party may voluntary move out. Otherwise, in order to obtain exclusive occupancy during a divorce proceeding, you need to show either: (i) your spouse established an alternate residence and his/her return would cause domestic strife; or (ii) your spouse poses a physical harm or threatens to damage property.
This can be a difficult or impossible standard to satisfy. As a result, we watched a season of Bethenny living in a hotel while she was undergoing her divorce.
If a divorcing couple has children, the issue of moving out can become even more complicated. Best practice is to have a parental access schedule before moving out. However, reaching an agreement on an access schedule can be tricky at an early stage of the case. Meanwhile, the tension at home may be intense and arguments may ensue, which can have a negative impact on the children.
Who gets the house post-divorce? A party may continue to reside in the home and buyout the other party’s interest in the property. Alternatively, as with Kelly’s beachfront condo in the OC, the home can be listed for sale and the sale proceeds divided. In other cases, either or both parties may continue to reside in the home for a specified period of time, such as when the children are still in high school, and then the home will be sold at a later date.
It may sound cheesy, but adages exist for a reason. Don’t forget that
home is where the heart is.
Stay tuned for the next installment, the Domestic Violence Version.
Rebecca Provder, Esq. is a partner in the Matrimonial and Family Law Department at Moses & Singer, LLP, 405 Lexington Avenue, New York, New York 10174, 212-554-7628, firstname.lastname@example.org.
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