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Property Held as Tenants by the Entirety
2004 National Legal Research Group, Inc.

NEW YORK: Delvito v. Delvito, 2004 N.Y. Slip Op. 02707, 775 N.Y.S.2d 71 (2004).

Property held as tenants by the entirety cannot be divided before the entry of a divorce decree without the consent of both spouses.

In an action for divorce, the wife appealed that portion of the trial court's order which directed the sale of the marital residence pendente lite. The Appellate Division reversed.

After the petition for divorce was filed, the wife moved for pendente lite relief. After reviewing the parties' financial records, the court concluded that the marital residence would have to be sold. That residence was owned by the husband and the wife as tenants by the entirety. The court ordered the husband to take the necessary steps to obtain a certificate of occupancy so that the residence could be sold. The wife's attorney indicated that the wife was agreeable to the house being sold as she understood that a sale would eventually happen. A year later, with the divorce proceeding still in the discovery stage, the husband filed a motion for the immediate sale of the residence. The wife opposed the motion, stating that she had not given her actual consent to the sale. The trial court disagreed, finding that her consent was established on the record, and ordered a sale of the property. On appeal, the Appellate Division disagreed. It noted that while the wife, through her attorney, did acknowledge that the residence would eventually have to be sold, this was not an expression of her consent that the sale could occur during the pendency of the divorce. The wife had no funds to obtain alternative housing for herself or their three children. The settled rule was recognized that courts do not have the authority to order the sale of property held by tenants by the entirety without the parties' consent unless the legal relationship of the husband and the wife is first altered by judicial intervention.

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