New York Law Journal, December 11, 2023 ●
This author started off the New Year in January 2023 with an article showcasing a decision by the Honorable Jeffrey S. Sunshine that demonstrated excellence in the practice of matrimonial law.
As 2023 comes to a close, given the state of world affairs, I find myself searching for any remaining vestiges of humanity. If I have to return to matrimonial jurisprudence to find vestiges of humanity, so be it.
Against that admittedly bleak backdrop, which I do not believe is overstated considering what has transpired in our world over the last few months, I felt my confidence in the willingness and dedication of our courts to do what is right, and what is just, sparked by Judge Edmund M. Dane’s Nov. 14, 2023 decision in T.H. v. G.M., 2023 NY Slip Op 51267(U).
T.H. brings us back to the standards under which a divorcing person may seek temporary exclusive use and occupancy of a home, which results in the physical separation of parents during divorce. As a general matter (excluding cases involving alarming threats of harm/extreme emotional abuse) there must be competent proof of physical violence or damage to property to justify the remedy of temporary exclusive use and occupancy. Failing that, if one spouse has an alternative residence, and his/her return to the home would cause strife, the exclusive use remedy may also be available.
A restrictive view of domestic violence has regrettably permeated matrimonial jurisprudence into following a litmus test of sorts that asks this: does the person seeking the exclusive use remedy have a black eye, or something equivalent?
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