Court-Ordered Sales of Marital Homes in New York: A Shifting Legal Landscape
For many divorcing couples in New York, the family home is their most valuable asset, and the decision of whether to sell or retain it is a significant factor in settlement negotiations. Historically, courts in New York have been unable to order the sale of a marital residence while a divorce is still pending. However, recent case law suggests that this long-standing rule is changing, allowing courts to direct the sale of a marital home in certain situations.
If you’re currently going through a divorce in Manhattan, Brooklyn, Queens, the Bronx, or Staten Island, and facing challenges over the fate of your marital home, understanding these legal shifts is crucial.
Can a New York Court Order the Sale of a Marital Home Before a Divorce Is Finalized?
The traditional rule, as set forth in Kahn v. Kahn (1977), was clear: New York courts could not force the sale of a marital residence while the divorce was still pending unless both parties agreed. The reasoning was that because New York used to require a finding of "fault" before granting a divorce, courts did not have the authority to distribute marital assets, including ordering the sale of a home, unless a final divorce decree had been issued.
New York adopted “No-Fault Divorce” in 2010 (DRL Sec. 170(7)) and this changed the landscape. Today, once one party states under oath that the marriage has irretrievably broken down for at least six months, a divorce is inevitable. Courts no longer decide whether a couple can divorce—only how to divide their assets.
This change has prompted courts to reconsider whether they should be able to order the sale of a marital home during the divorce process when fairness requires it.
Recent Cases Allowing the Sale of the Marital Home During Divorce
D.R.D. v. J.D.D. (2021): The First Major Shift
In this Monroe County case, the husband and wife had agreed to sell the marital home but could not agree on how to proceed. The wife, who was living in the home, refused to allow the husband to make repairs necessary for the sale and later attempted to delay the closing indefinitely. The court found that she was using the home as an interest-free loan by living there without contributing to mortgage costs while blocking her husband from accessing his share of the equity.
The judge ruled that the home should be sold immediately, stating that the legal landscape had changed since Kahn v. Kahn and that the principles of equitable distribution allowed courts to intervene in property matters before a divorce was finalized.
Taglioni v. Garcia (2021): When a Spouse Uses the Home as Leverage
This First Department case involved a Manhattan townhouse worth $6 million. One spouse wanted to sell the home, while the other refused unless the selling spouse paid for a rental apartment in New York City during the divorce.
While the appellate court ultimately reversed the trial judge’s order to sell the property, two dissenting judges argued that courts should have the authority to force a sale when one party is using the home to gain leverage in divorce negotiations. This dissenting opinion laid the groundwork for future courts to expand their authority.
J.H. v. C.H. (2024): Foreclosure and Financial Harm Justify a Forced Sale
In this recent Putnam County case, the husband continued living in the marital home after separation but defaulted on the mortgage twice, triggering foreclosure proceedings. He then proposed a 40-year loan modification that would have obligated his wife to a mortgage she could not afford.
The court ruled that allowing him to stay in the home indefinitely would be unfair and ordered that the home be sold immediately. The judge specifically cited the reasoning in D.R.D. v. J.D.D., further establishing a trend toward court-ordered home sales in certain divorces.
When Can a Court Order the Sale of a Marital Home?
While these cases do not create a blanket rule, they signal that New York courts are becoming more willing to order the sale of a home before a divorce is finalized. Some key factors that courts consider include:
✅ Financial Harm to One Party – If one spouse is unfairly burdened by mortgage payments, unable to access their share of home equity, or facing foreclosure, courts may step in.
✅ Bad Faith Delays – If one spouse is using the home as leverage to extract concessions, such as demanding rent payments in exchange for agreeing to sell, a judge may intervene.
✅ No-Fault Divorce Principles – Since divorces in New York are now guaranteed once one party files, courts have less reason to delay property division.
✅ Children’s Housing Needs – Courts may be reluctant to order a sale if children would be left without a stable home. However, if the home is a financial liability, a sale may still be ordered.
What This Means for Divorcing Couples in New York
If you are divorcing and your spouse is refusing to sell the home or delaying the sale to gain leverage, courts may be able to intervene. These legal changes mean that judges are no longer strictly bound by Kahn v. Kahn and may now order a home sale when fairness requires it.
This shift could be particularly important in today’s high mortgage rate environment, where holding onto a home at an outdated low rate could be financially harmful to one party while benefiting the other.
How Mindin & Mindin, P.C. Can Help
Dividing a marital home during a divorce can be one of the most contentious and complex financial decisions. Our experienced New York divorce attorneys at Mindin & Mindin, P.C. can help you:
✔ Negotiate a fair settlement to avoid unnecessary delays.
✔ Petition the court to order a home sale if your spouse is using the house as leverage.
✔ Ensure that financial arrangements are in your best interest, including mortgage obligations and equity division.
✔ Protect your rights if foreclosure is a concern.
If you’re struggling with a home sale dispute during your divorce, call us today at 888.501.3292 for a confidential consultation.
Don’t let your spouse hold your financial future hostage—take control of your divorce today.