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.