Over 30 years of experience in divorce & family law




H.Michael Stern, Esq., a New York matrimonial and family law attorney with over 33 years of experience suggests thatall possible contingencies should be addressed in drafting a New York Stipulation of Settlement or Separation Agreement concerning the sale of a residence.

house-for-saleIn a recent case determined by the Appellate Division, First Department in New York, the Appellate Court reversed the trial judge’s ruling that set forth terms of sale of the parties’ residence that were omitted from the parties’ stipulation which settled their divorce case. The parties divorce settlement agreement set forth an asking price for the marital residence and a commitment that it would be sold but left out further details. The lower Court judge ruled that if the marital residence was not sold by a certain date, then the parties were to consult their broker to reset the asking price of the residence at an amount set by the broker, The lower Court ruling also permitted the parties to apply for a receiver to sell the property if not sold three months later. A receiver is a person appointed by the Court to sell the property (taking a commission in the process). The Appellate Court rejected the lower Court’s decision, stating that since the parties’ stipulation was not challenged by either party and that the parties did not consent to change the terms, the lower Court judge lacked the authority to add those additional terms (where the parties had already provided for pricing and sale terms in their stipulation).

The practical effect of this decision enables the recalcitrant home occupant to do nothing to facilitate the sale of the residence, depriving the other party from access to his or her home equity. The party in possession may be able to live in the residence during his or her lifetime under the circumstances. Hypothetically, if the party in occupancy was granted exclusive occupancy of the residence pending sale in the stipulation, the remedy of partitioning the property may also be unavailable, depending on the facts of the case.

Thus, in my opinion it is critical to hire a seasoned and experienced matrimonial lawyer, with a record of success, to make sure that all the contingencies are covered in drafting the contractual provisions concerning the sale of the marital residence. I have created clauses which protect the party out-of-possession to ensure that he or she never faces the harsh, bitter reality of the out-of-possession party in the case discussed in this blog.

I also successfully litigated and settled a matter for the out-of-possession party with a similar fact pattern within the past year.  

Since 1987, I have been trying divorce cases and Family Court hearings. I handle all types of post-divorce applications and hearings as well. My goal, first and foremost, is to win at trial when a settlement cannot be reached in the case.  Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 33 years.

Feel free to contact me, H. Michael Stern, Esq. a  Long Island divorce and family law attorney, if you are interested in a Free Consultation to discuss your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My Long Island office is conveniently located adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road in Garden City, New York.

Written by, H. Michael Stern, Divorce & Family Law Attorney

The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York. This is attorney advertising. Prior results do not guarantee future outcomes.