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THE VIRGINIA DIVORCE DID NOT CHANGE THE PARTIES’ STATUS FROM TENANTS BY THE ENTIRETY TO TENANTS IN COMMON FOR THEIR NEW YORK MARITAL RESIDENCE; NEW YORK FOLLOWS THE “DIVISIBLE DIVORCE” DOCTRINE (SECOND DEPT).

The Second Department determined that the Virginia divorce did not affect the couple’s status as tenants by the entirety for the marital home n New York:

The plaintiff contends that the tenancy by the entirety dissolved by operation of law when the Virginia divorce decree was entered, and that the ownership interest in the subject property transformed from a tenancy by the entirety to a tenancy in common … . New York, however, follows the “divisible divorce” doctrine, pursuant to which the ex parte Virginia divorce decree, obtained without personal jurisdiction over the defendant, terminated the parties’ status as husband and wife, but had no effect on the defendant’s property rights … . In conformity with this doctrine, it is well established that an ex parte foreign divorce decree cannot divest the nonappearing spouse of his or her rights in a New York tenancy by the entirety … . Contrary to the plaintiff’s contention, the full faith and credit clause of the federal constitution requires only that New York recognize that the Virginia divorce decree dissolved the parties’ marital status … . Thus, the tenancy by the entirety in which the parties own their marital home has not been terminated. Bernhardt v Schneider, 2021 NY Slip Op 00407, Second Dept 1-27-21

 

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