DIVORCE - THE MARITAL RESIDENCE

This is the same case that I discussed yesterday but on a different issue.

Marino v. Marino, 2020 NY Slip Op 2922, Appellate Div., 2nd Dept. May 20, 2020:

"Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in awarding the plaintiff exclusive use and occupancy of the marital residence until the parties' youngest child reached the age of 18. "Exclusive possession of the marital residence is usually granted to the spouse who has custody of the minor children of the marriage'" (Greisman v Greisman, 98 AD3d 1079, 1080, quoting Mosso v Mosso, 84 AD3d 757, 760). "However, the need of the custodial parent to occupy the marital residence is weighed against the financial need of the parties" (Goldblum v Goldblum, 301 AD2d 567, 568). Here, the plaintiff has sole custody of the minor children, two of whom have special needs and require stability. Furthermore, the defendant has failed to establish an immediate need for the proceeds of the marital residence, especially in light of the equitable distribution award.

"[A] trial court is vested with broad discretion in making an equitable distribution of marital property, and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed" (Bernholc v Bornstein, 72 AD3d 625, 628; see Michaelessi v Michaelessi, 59 AD3d 688, 689). Here, we agree with the Supreme Court's determination to award the defendant 40% of the value of the marital residence. Notwithstanding the long duration of the parties' marriage, there is no requirement that the distribution of each item of property be made on an equal basis (see DeSouza-Brown v Brown, 71 AD3d 946, 946-947). Under the totality of the circumstances, including, inter alia, the parties' unequal financial contributions to the marital residence, which included the complete reconstruction of the marital residence by the plaintiff's father's company and the repayment of the home equity loan by the plaintiff's parents, the award of 40% of the value of the marital residence to the defendant was a provident exercise of discretion (see Klauer v Abeliovich, 149 AD3d 617, 622-623; Bernholc v Bornstein, 72 AD3d at 628; DeSouza-Brown v Brown, 71 AD3d at 946-947).

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However, to the extent that the defendant will not be receiving the proceeds of the marital residence until the parties' youngest child attains the age of 18, which is approximately 10 years after the trial of this matter, the Supreme Court should not have directed that the defendant's 40% share of the marital residence be based upon the stipulated value of the marital residence of $1,200,000. At the time the parties' youngest child attains the age of 18, the plaintiff should have the option of either selling the marital residence and paying the defendant 40% of the net proceeds of the sale after payment of usual and customary closing costs, or purchasing the defendant's share of the marital residence by paying him 40% of the fair market value of the residence at that time."