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It has been 18 months since Justice Richard Dollinger of the Supreme Court of the State of New York, Monroe County, issued his decision in L.M.L. v. H.T.N., 2017 NY Slip Op 51333(U). The decision addresses the standard for the remedy known as “exclusive use and occupancy” in matrimonial proceedings. The case has been the subject of discussion at continuing legal education seminars. It was also addressed in a prior column in this publication (Time to Open the Door on Exclusive Occupancy, by Dana Stutman, dated Nov. 7, 2017). However, reported decisions do not indicate that the decision has gained any traction. When one shepardizes the case on LEXIS, only one reported decision comes up—J.F. v. D.F., 2018 NY Slip Op 51829(U). J.F. is another decision by Dollinger, albeit on a different topic (parental alienation).

‘Exclusive Use and Occupancy’

Unique challenges abound when parents involved in contested matrimonial litigation live under the same roof while the divorce action is pending. While the lawyers proceed with discovery, court appearances, motion practice, trial preparation, settlement negotiations, etc., divorcing parents who live together while the action is pending are put in the position of trying to carry on with everyday life in what matrimonial lawyers call the “marital residence” (i.e., home). For those families where the degree of conflict inside the home is relentless, the impact on the well-being of children who bear witness to that conflict day in and day out often leads to a discussion between attorney and client about the client’s ability to obtain the interim remedy known as “exclusive use and occupancy” of the home. Section 234 of the Domestic Relations Law (DRL) empowers courts to make a “direction … concerning the possession of property … having regard to the circumstances of the case and of the respective parties.”

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