Westchester County (NY) Supreme Court Justice William J. Giacomo has ruled on a dispute between a married lesbian couple concerning the disposition of the house they jointly purchased shortly before their marriage. The court's March 22 ruling, published in the NY Law Journal on March 30, rejected one spouse's argument that the property had to be disposed of through a divorce proceeding.
Jane and Diane Taylor were married in Greenwich, Connecticut, on December 12, 2008. Ten days earlier, they had executed a pre-nuptial agreement dealing with the division of their property in the event their relationship should end. The agreement specifically stated that upon the sale of their home, each of them would be entitled to "the amount of money each of us paid" and that "any profit over and above that which we paid will be shared equally." They had bought the house in Hastings-on-Hudson on July 14, 2008.
Evidently things didn't work out, and Jane filed a divorce action in Westchester County, but it was withdrawn by agreement on October 8, 2010. A month later, however, Jane started a new lawsuit, seeking a court order to have the house sold and the proceeds distributed as provided in the pre-nup. Diane countered that as they were married, the property could not be dealt with in that manner. She argued that it could only be sold as part of a divorce proceeding where the assets were distributed under the state's equitable distribution law.
Judge Giacomo rejected Diane's argument, finding that the property was purchased by the women prior to their marriage as "tenants in common" and thus was not a "marital asset." As such, Jane "has a right to maintain an action to partition real property." The court found no factual issue regarding Jane's right to bring this action, and pointed out that no divorce proceeding was now pending and there had been no agreement by the parties to waive their rights as tenants in common.
Giacomo pointed out that before any sale it would be necessary to have an "accounting" of "the contribution for the purchase of the property as well as contribution for the expenses of the property, including but not limited to insurance costs, taxes, rents, and maintenance costs." Denying Diane's motion to dismiss the case, Justice Giacomo granted Jane's motion to declare that Jane and Diane held the property as tenants in common, and indicated that a referee would be appointed before the sale to determine distribution of the proceeds.
Now that New York courts will recognize same-sex marriages performed out of state, couples who own real property and get married need to think about the form in which they bought their property and whether that is still appropriate to their situation. There is a form of property ownership open only to married couples that may be advantageous depending upon the financial situation of the couple, which should be explored before any property dispute if possible.