Elizabeth DiPirro Speaks to BLJ on Exclusive Possession of Marital Residence

Elizabeth DiPirro shares recent outcomes regarding Domestic Relations Law Sections 234 and possession of marital residence.

Actions don’t always speak louder than words. Justice Richard A. Dollinger of the Monroe County Supreme Court granted a mother the right to live in the family home with the children, forcing the father to find different living arrangements, in order to protect the children from being exposed to constant verbal arguments between their parents. This was while the divorce action was still pending.

In rendering his opinion, Dollinger determined that, based upon diametrically opposing allegations raised by each of the parties in their papers, the parents were unable to refrain from engaging in conflict. On a daily basis, the children witnessed verbal confrontations which included the threat of physical violence. According to the attorney who represented the 9- and 12-year-old boys, they were living in a constant state of stress that had caused them at times to hide in their bedrooms with their doors locked. 

Each of the parents presented conflicting statements as to which parent was at fault, but neither parent denied the presence of constant turmoil. As a result, Dollinger was able to find, without a hearing, that the children were subjected to domestic strife with both parents living in the same household. 

Given that finding, he examined the history of Domestic Relations Law Section 234, a statute that gave courts discretion in evicting a spouse from the marital residence during the pendency of a divorce, and the progeny of cases that followed. Historically, courts interpreted Section 234 to require a party to prove that exclusive possession of the marital residence was necessary to protect the safety of persons and property. Evidence sufficient to warrant exclusion included information indicating police intervention at the home or that a party had sought and received medical treatment for injuries consistent with abuse.

Gradually, the interpretation of the requirements of Section 234 expanded to include proof the of the existence of domestic strife or the likelihood that the marital home would be exposed to domestic strife, such as in the case where a party residing elsewhere when the divorce action began, threatens to return to live at the marital home until the divorce action is completed.

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