A divorce is a complicated process that requires the partners involved to answer a lot of crucial questions about their future – from who is going to have custody of the children, to who will pay or receive payments to or from the other if at all. Dividing property in a divorce is generally one of the most contentious issues that need to be resolved before a pair can continue their lives and go their separate ways. Moving through a divorce when, as a couple, you know that you have an outstanding mortgage, can be a huge worry. However, understanding what might happen to your home can help to make the process somewhat less stressful.
Today, we will attempt to examine the question of whether a New York divorce court can order a mortgage to be paid during a pending divorce. However, like most things in divorce law, it’s worth acknowledging that the answer may not be a simple one. Often, when it comes to equitable distribution, maintenance payments, child support and custody / visitation or parenting time maters a range of other concerns in the legal system, there are short and long answers to consider. The short answer is that if a New York court has ordered child support and maintenance to be paid – according to the new law that has taken effect in 2016 – the recipient of that award is intended to use the funds they have received to pay the mortgage and their other expenses where they are living – while the case is pending or Pendente Lite.
One important element to outline in this, is that sometimes the court may determine that the recipient should only be ordered to continue paying the mortgage in the home where she lives when the divorce is being settled or litigation proceeding. In other words, if she or he moves out of the marital residence, then the recipient will need to pay the expenses in the new place where they choose to live. When a support payee decides to move from the marital home during a pending divorce, the carrying charges may not be required to be paid by either party when there is a maintenance and/or child support award under the current law. For instance, in C.G. v F.G., 53. Misc. 3d 229 (N.Y. Sup. Ct. 2016) the recipient of guideline maintenance and child support outlined that the payee must pay all of their reasonable expenses. This includes any rent or mortgage, and any carrying charges after their maintenance amount has been awarded. This means that the court can order the support recipient to pay the mortgage pendente lite of the marital residence.
In the case above, in order to comply with the new rules set forth in the Domestic Relations Law, upon the receipt of any maintenance or child support payments, the payee (wife), was required to pay the mortgage, carrying charges, and utilities associated with the home where she moved to reside, using her income and the support received, during a pendente lite case. Within the same ruling, it was outlined that because of the circumstances in question, nothing compelled the wife to remain within the first home, or avoid moving, but now that she had moved, she would have to use her funds to pay for the mortgage and living expenses incurred at her new residence. That meant that there was no order for either side to pay the mortgage in what was the marital residence.
In my opinion, even under the current law, a claim for marital waste may be attempted by the payor in an ultimate equitable distribution determination if the recipient of maintenance or support fails to pay the mortgage of the marital residence. Marital waste is a claim that attempts to prove that one of the spouses in a marriage intentionally or wrongfully squandered, or abused marital assets to deprive the other of their fair share. The details of marital waste can vary by jurisdiction, but as with any other case of family law, there are typically several factors that must be examined for a claim of marital waste to be validated. The recipient on the other hand may claim that they cannot afford to stay in the marital residence.
If there is no claim for maintenance or support, it is my opinion that the law can be applied in which the courts order payment of the carrying charges associated with the mortgage for the marital residence. Crucially, the right circumstances must apply in the discretion of the court.
In Sedgh v. Sedgh, 142 Misc. 2d 931 (N.Y. Sup. Ct. 1989), for example the court outlined that where funds are available, it is possible to order one party to make all of the mortgage payments for a particular household until the final litigation outcome has been reached. However, where there is a claim of “lack of assets” presence, unencumbered by liens of creditors, meaning that the individual cannot afford to make the payments, then the direction for that person to make mortgage payments would simply be useless.
An examination of previous cases shows that in divorce and family law, decisions of whether mortgages and carrying payments should be paid during a pending divorce case are not simple. As with other aspects maintenance (alimony), support, equitable distribution and other determinations, numerous factors must be taken into consideration by the New York courts to determine what is “fair” for both parties involved. Indeed, the aim of the New York Court is often to ensure that the right determination is given, while placing neither party within a situation where they may become destitute.
To find out more about the complexities of family law and equitable distribution, or discuss the issues surrounding pendente lite cases and maintenance payments, please contact me, Mr. Darren M. Shapiro at your earliest convenience. You can get in touch through our online form to schedule your free half-hour consultation, or you can contact us on : 516-333-6555