What is the benefit of forcing parties who are divorcing to live together? Without a finding of violence or fear for physical safety, New York courts have been far too reluctant to grant interim exclusive occupancy of a family home to a spouse. Although courts will grant temporary occupancy to one spouse when finding “domestic strife” in the household, this can only happen if an alternate residence is available to the ejected spouse. So-called “petty harassments” such as hostility and contempt have traditionally failed to meet the standard because they are considered part of the overall divorce process.

It is time for the courts to place priority upon the emotional well-being of people that are divorcing (and their children) and to grant separations to parties as an interim step toward resolution. It defies reason to subject an individual to the regular mental and emotional anguish often caused by living with a spouse they are divorcing. The divorce process is known to place a person in one of the most vulnerable positions of their lives. This is only magnified when compelled to share the same space with someone who is focusing their anger and resentments upon them.

In a recent decision (LML v. HTN a/k/a HTN), New York State Supreme Court Judge Richard A. Dollinger, of Monroe County, has challenged our state's exclusive occupancy standard, referencing “compounding evidence that existence of a hostile home environment, during a divorce, runs contrary to the best interest of children.” This ruling represents a step in the right direction, by accepting the basic standard of domestic strife, and declaring that it is enough, regardless of whether or not there is an alternative residence.

Until Judge Dollinger's decision, the New York courts have relied upon a “general rule” that in an action for divorce, separation, or annulment, no party shall be granted exclusive possession of the marital residence pendente lite, unless such an order is necessary to protect the “safety of persons or property.” The origins of this approach were seeded at a time when courts only granted divorce or separation after a finding of fault and at a time when property was distributed based upon title alone. It is understandable that given the possibility that a divorce and separation might not be forthcoming, courts of that time often denied applications for temporary exclusive occupancy unless an alternate residence existed, thereby protecting the non-titled spouse from being ejected. Times have changed dramatically, particularly since New York has now become a no-fault state; divorce is now a fait accompli. Nor has title been an issue since the passing of Equitable Distribution Laws almost four decades ago (1980).

What case law does reveal is that New York matrimonial courts have favored separating parties in a divorce action. That is, in cases where an “alternate residence” is available (Lerner v. Lerner, 21 A.D.2d 861, Parlato v. Parlato, 44 A.D.2d 720) the courts require a lower standard, a mere showing of “domestic strife,” in awarding exclusive occupancy to a spouse. Courts, however, limit such an award in cases that are not dire, if alternate housing for the excluded spouse is not available.

I submit, if domestic strife is enough to warrant exclusive occupancy in situations where an alternate residence does exist, this finding alone should also warrant an interim separation even when there is no alternate residence. I also challenge the court to find a divorce litigation, seeking exclusive occupancy, where domestic strife is absent. A higher priority should be given to reduce acrimony in the household, especially where there are children in the home. And interim finances necessitated by an interim separation can be determined by the court.

This, then, begs the question: How do those without an alternate residence manage an interim separation? The answer: An interim separation is managed in similar fashion to the inevitable final separation, with an interim order or agreement allowing for a temporary financial “fix” during the temporary separation. In matters where financial awards can be afforded to an excluded spouse to obtain the new residence, finances should not be a barrier. In cases where parties do not and will never have the financial wherewithal to obtain a second household, a delay in separating the household will just delay the contemplation of a financial solution in the ultimate divorce of those parties; and will not change their (in)ability to support two homes.

But in divorce actions where there is not enough income, but real property exists, liquidity can be a problem. Without a sale of the marital residence, many divorcing spouses cannot afford a separate residence. Since 1977, the community, bench and bar alike, have cited “well-settled law” that a court is not empowered to order a sale of a residence pendent lite. That seminal decision was issued in Kahn v. Kahn, 43 N.Y.2d 203 (1977), which occurred prior to equitable distribution and prior to the enactment of no-fault divorce in this state. The Kahn court interpreted the law in light of the inability of the matrimonial court to transfer title where a divorce was denied and the parties held property as tenants by the entirety. But the Domestic Relations laws have changed since Kahn was decided. Divorcing parties should not be bound forever by a 37-year-old case whose facts and laws no longer apply.

Whether a family has financial means or not, an interim separation may spark negotiations earlier in the process, paving the way to global settlement.

It is only a matter of time before divorcing parties stop living together, so we must recognize this and stop prioritizing finances above the mental and emotional well-being of spouses and their children. Times have greatly changed in terms of societal progress and a deeper understanding of the impact of the many forms of abuse and conflict. The courts of New York need to seize the moment, step up, and open the door on the current standards of exclusive occupancy.

Dana M. Stutman is a partner at Stutman Stutman & Lichtenstein.