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Even Though Husband’s Funds Were Deposited in a Joint Account, the Portion of those Funds Used for a Down-Payment on the Marital Residence Was Properly Deemed Husband’s Separate Property; Supreme Court Abused Its Discretion In Ordering the Sale of the Marital Residence—Wife Entitled to Exclusive Possession Until Child Turns 18

The Third Department determined that the husband’s separate property, which had been deposited in a joint account before a portion of it  was used for a down-payment on the marital residence, was properly deemed the husband’s separate property to the extent it was used for the down-payment. The Third Department further determined Supreme Court had abused its discretion in ordering the marital residence sold. Under the facts, the mother was entitled to exclusive possession until the child turns 18:

Supreme Court erred in directing that the marital residence be listed for sale. Our case law reflects “‘a preference for allowing a custodial parent to remain in the marital residence until the youngest child becomes 18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale proceeds'” … . Proof at trial established that the parties’ young children reside with the wife in the marital residence and, although she has the means to pay the mortgage, she is unable to refinance or purchase another residence. No evidence was adduced that the wife could obtain comparable housing at a lower cost or that either party is in immediate need to recoup their equitable share of the marital residence. Under these circumstances, we find that Supreme Court abused its discretion in directing that the marital residence should be listed for sale. Accordingly, the wife is entitled to exclusive possession of the residence until the youngest child reaches the age of 18 … . Albertalli v Albertalli, 2015 NY Slip OP 00257, 3rd Dept 1-8-15

 

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