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The Marital Residence

  • by Danielle Montalto-Bly

You live together. You get married. You split up. Someone stays. Someone goes. There may be rent. There may be a mortgage. There may have been improvements made on the residence. So, what now?

When it comes to the marital residence, questions and conflicts often arise, regardless of the details. Think: "The Break-Up," a modern-day War of the Roses, in which Vince Vaughn and Jennifer Aniston torture each other for months while each trying to oust the other from their luxury condo in New York City. Sure, the scenarios in the movie were created for comedy and entertainment, but do not be fooled. Couples all over, especially in New York City, are pulling every trick in the book trying to maintain their living arrangements.


Just because your S/O is an SOB does not mean you can go home, change the locks and throw his/her wardrobe onto the street. Changing the locks is a form of "self-help," (doing alone what should have otherwise been done through the legal system) and is not only frowned upon by the Court, but is also illegal and could lead to an arrest.


Couples who live together for more than 30 days, regardless of how, where or why, both have certain rights to the property and cannot simply be “put out.” Sure, people can agree for someone to leave, but will the other party be able to swing the rent alone? Even if someone is willing to move out, will they be “on the hook” for payments? Where both parties are on the lease or mortgage, it could be dangerous to leave without some indemnification. 

In NY, it is difficult at best to remove a party from a lease or mortgage. In NY, lease approval requires proof of earnings at 80 times the monthly rent. Similarly, where parties own property together, it is often difficult to get the bank to change the loan documents to one party’s name. After all, it is in the bank’s interest to have as many people "on the hook" as possible, in the event of a default.


On occasion, parties take drastic measures in insuring their right to the marital residence. One well-known technique is to file false claims of domestic violence or fear of physical safety through an order of protection. These orders often create limits on how and why the parties can contact each other, and may exclude someone from the home until they are afforded an emergency hearing. In that interim period, it is often the "victim" who maintains possession of the home, while the "assailant" must find alternate accommodations.

Once a party is out of the residences it becomes very difficult to get back in. This is why I often advise my clients to stay put, but sometimes that’s easier said than done. One of my more recent clients attempted to co-habitate with his wife, until he confirmed that she had been cheating on him, Sharing the space with her became mentally exhausting and unhealthy for him. In that instance, rather than advising him to leave the residence, I advised that we work with his wife (and wife's counsel) in reaching a settlement that would get her out of the house as quickly and painlessly as possible.


Often times, knowing your limits and the limits of your partner is in navigating the housing situation. Where things have become intolerable or risky, compromise and negotiation are crucial in avoiding legal drama and unaffordable costs. In the event that the parties indeed want to "duke it out" in the courtroom, real estate brokers, appraisers and forced sales may be the only way out. When it comes time to live together, plan accordingly. It’s not pessimistic, it’s logistics