After several years of litigation and still no end in sight can the court direct the sale of the marital residence?

 

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Under New York law, it is well-settled that prior to the judge signing the divorce judgment and the clerk entering it into the record, the New York courts lack the authority to direct the sale of the marital residence owned by the parties as tenants by the entirety. The only exception to this clear rule is where the parties consent to the sale of the home.

During the litigation, however, it is also true, absent consent from both the parties, that neither party may sell the marital home. In fact, once the Plaintiff (the person who files for divorce) files the Summons and Verified Complaint with the proper court and then properly serves the opposing party, both parties are bound by “automatic orders.” Under New York Law, the automatic orders prohibit the selling, transferring, encumbering, concealing, assigning, removing, or disposing of any property. However, the New York legislation passed in 2009 provides an exception if done in “the ordinary course of business” or with the other party’s consent. While even some of the most experienced New York lawyers remain unsure as the precise meaning of “ordinary course of business,” it is clear that selling the marital property, during on-going divorce litigation, violates this part of the automatic order which, once brought to the court’s attention, should be cause to hold the violating party in contempt.

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