June 29 2010
Hard to believe, but that’s apparently what happened to a couple who got divorced, as we found out from a decision handed down by the Appellate Division just last week. They got a judgment ending their marriage – splitting up themselves and their assets – but without bothering to say anything about the Upper West Side condo they owned.
How could that have happened? According to Dino Lombardi, attorney for the ex-husband (who was not involved in the divorce proceedings) the couple had an amicable split so they resorted to a “cut and paste do it yourself” agreement – that left out the apartment, an omission that came back to bite when things went south. Anthony Prisco, attorney for the ex-wife, claims the couple “came to an agreement verbally that she owned it.”
I want my half, the ex-husband demanded of his former wife, who was living in the apartment. Tough, she basically said. My parents paid for it, and I’ve been paying all the maintenance since you moved out so it’s MINE.
What to do her ex pondered. An apartment isn’t like an apple or a tree trunk that you can physically hack in two with a knife. Instead he demanded legal division, called partition. Only the court below said, “no,” and dismissed the case, leaving him in legal limbo, his former wife in the apt, and his lawyer frustrated and surprised at the result.
“I was kind of flabbergasted,” Mr. Lombardi said. “The case should have been decided as a matter of law because even after the divorce the two owned the apartment as tenants in common.” Laure Salerno, his partner, who has also worked on the case, agreed.
But just a few days ago the husband got a reversal of fortune — No, you can’t, turned into yes, you can. Why? Because the two jointly owned the apartment, indeed he was still on the deed. And unlike lots of divorce judgments that give one spouse the exclusive right to occupy and possess the apartment, theirs didn’t. So even though the ex-wife lived there, her ex-husband had the right to possession, and since you can’t physically split the apartment the only way to get what he had a right to is to sell the place and divide the proceeds, which is exactly what was ordered.
Except how do you decide who gets how much? There’s the rub. Since the ex Mr. and Mrs. had never addressed the issue themselves, there now has to be an accounting, leaving the court to decide what the parties didn’t.
That’s what happened in a dispute between the owners over a Central Park West condo,where in dividing the proceeds, the court took note of the fact that the one who had solely financed the purchase of the apartment was entitled to more. Two owners of an Upper West Side penthouse were so at war with one another that they couldn’t even agree on a procedure for a real estate broker to sell the apartment after the court had ordered partition and were forced to sell at public auction, never the way to get the best price.
Nevertheless, Ms. Salerno and Mr. Lombardi are confident of the outcome. According to them, the ex-husband paid tens of thousands to renovate the apartment, footed the bill for the mortgage, maintenance, and household expenses for the five years he lived there, and continues to be solely responsible for child support. Mr. Prisco, claims that any such renovations or maintenance were paid for by the wife’s parents or out of marital funds, and that his client has carried apartment expenses since her ex moved out.
But it’s better to decide in advance how much each of you will get than to leave it to some third party referee, who to add insult to injury, may charge you for deciding how much you get – or don’t. So if you’re getting divorced or separated, don’t forget the apartment — or you may find yourself in the same boat as this couple, not a happy place to be in the current market.