DRL § 234: who stays in the house while the divorce runs

The section gives the court power to make such direction concerning the possession of property as justice requires, having regard to the circumstances of the case and of the parties, and to do it by order before final judgment rather than at the end. What it weighs is the household as it now is - the fact that decides it is the effect of the present arrangement on the people living in it, not whose name is on the deed.

One of them takes a short-term rental nearby for six months, paid from the joint account, and both record in writing that the arrangement decides nothing about who ends up owning the house.

The section separates the two powers on purpose: determining title is one thing, directing possession is another, and a court may direct possession to a spouse who is not on the title. The deed answers the ownership question and does not answer the occupancy one, which turns instead on what justice requires in the circumstances.

Nobody moves out on a month's notice. They set a leaving date four months away tied to the end of the school term, and record that the arrangement is not an admission about ownership by either of them.

Where a judgment, order or decree affects title to real property, the section requires a certified copy to be recorded with the recording officer of the county where the property lies, as provided by Real Property Law § 297-b. The consequence turns on whether that step was actually taken: a deal that exists between the parties is not the same as one that appears on the record.

They agree which of them does the recording and by what date, share the fee, and each sends the other confirmation once it is done rather than assuming someone else handled it.

Does Domestic Relations Law § 234 permit a court to order a party to pay half of the mortgage balances on a marital residence pending trial to prevent foreclosure?

The court held that Domestic Relations Law § 234 authorizes such an order as a proper exercise of discretion to preserve marital property pending equitable distribution, and that it does not constitute prejudgment equitable distribution.

Here, contrary to defendant’s assertion, the motion court’s order, insofar as it ordered defendant to pay 50% of the balances owed on the mortgages on the marital residence in the event that he is unable to refinance the mortgages or obtain extensions of the mortgage notes, was a proper exercise of its discretion pursuant to Domestic Relations Law § 234.

Whether the Supreme Court has the authority to decide which party in a matrimonial action is entitled to possess nondistributable property.

Under Domestic Relations Law § 234, the Supreme Court has the discretion to award possession of property not subject to equitable distribution, including a rent-controlled apartment leasehold.

While the apartment leasehold is not distributable pursuant to the equitable distribution provisions of the Domestic Relations Law, the Supreme Court has the discretion to fashion an appropriate award as to the possession of property not subject to equitable distribution

Does Domestic Relations Law § 234 empower the Supreme Court to determine all issues regarding property owned by the parties, including the dissolution of an LLC owned solely by them, within the divorce action?

Under Domestic Relations Law § 234, the Supreme Court is empowered to determine all issues with respect to property owned by the parties, and there is no reason to leave any issues for resolution after equitable distribution. Therefore, the dismissal of the second action was proper.

Pursuant to Domestic Relations Law § 234, Supreme Court is empowered to determine all issues with respect to the property owned by the parties (see Ripp v Ripp, 38 AD2d 65, 67 [1971], affd for reasons stated below 32 NY2d 755 [1973]).

Whether, under Domestic Relations Law § 234, a court may divide jointly owned marital personal property in the absence of a divorce.

The court held that Domestic Relations Law § 234 does not authorize a court to divide jointly owned marital personal property (such as art, antiques, wine, and a boat) because doing so would amount to equitable distribution without a divorce, which is prohibited. However, the statute does authorize orders for possession of property owned by a spouse prior to the marriage.

To broadly read this statute as allowing a court to divvy up countless items of marital jointly owned personal property would run afoul of the prohibition against equitable distribution following the denial of a divorce.

Does Domestic Relations Law § 234 authorize a separate plenary action for partition of personal property jointly owned by spouses who remain married, when no divorce, separation, or annulment action is pending?

The court held that Domestic Relations Law § 234 has no application to a nonmatrimonial, post-Equitable Distribution Law action for partition of personal marital property, because the statute applies only in matrimonial actions or those subject to equitable distribution principles, and a divorce must first be granted before the corpus of joint marital property can be equitably divided.

Since the instant action is neither a matrimonial action, an action commenced prior to the advent of the Equitable Distribution Law, nor an action subject to equitable distribution principles, Domestic Relations Law § 234 has no application to this case.

Whether Domestic Relations Law § 234 permits the filing of a temporary restraining order against a husband's membership interest in limited liability companies, thereby affecting real property owned by the LLCs, even though the husband has no direct title to that real property.

The court held that the temporary restraining order was properly filed with the City Register pursuant to Domestic Relations Law § 234 because the order prevents disposition or dissipation of marital assets and the LLCs were acting in combination with the husband, so the filing was proper.

Under the circumstances, the TRO was properly filed with the City Register pursuant to Domestic Relations Law §234.