divorce settlement

[nomnuevo]

exwife & kids "got" the rent-stabilized apt in divorce, but it had seemed prudent to keep lease in husbands name (continuing to pay w checks w both names). now husband is filing out of state tax return for 2nd year in a row (and we're in a building where landlord's doing everything possible to decontrol other tenants). one legal advisor said, "no problem since the children have continued living there," but i'm not so sure (and very worried, i.e., as "ex" there's no adult living in apartment who counts as immediate family of leaseholder). asking to have exwife put on lease seems like it'll only draw attn. is the family truly safe because minor children of the leaseholder live there or not?

[Cranky Tenant]

If they lived there together as a family, then the wife and kids are entitled to remain in the apartment, and to have a lease in their names.

Keep records of rent payments, marriage certificate, birth certificate, utility bills, and anything else that proves you were there for more than two years. You can either ask the landlord to transfer the lease to you, or wait until he finds out.

Also the lease would be transferred so there would be no rent increase beyond any normal renewal amount and the new lease should be under the same terms as the original.

[<Red Zephyr>]

You need to see a lawyer and sort this one out.

Among other things, courts do not consider a rent stabilized lease to be an "asset" like a house or condo would be. Rather, its an obligation to pay monthly rent. As such family court cannot "give" the apartment to one spouse or the other.

[ronin]

I would disagree with Red on that one.

Firstly, divorce actions take place in state Supreme Court, the trial court of general jurisdiction. As such, the doctrine of collateral estoppel should apply with respect to the ex-wife and kids ability to stay there. A housing court would be estopped from overruling the Supreme Court judge's ruling on the right of occupancy.

In addition, the family makeup would appear to give automatic legal possession to the ex-wife anyway. But it is nice to have alternate arguments.

IMHO

Ronin
www.rentwars.com

[dakellner@kcdlaw.com]

Not true! There is case law that a divorce court award of a rent regulated residence is not binding on a landlord. The succession rules in the Rent Stabilzation Code (2523.5) still apply.

[ronin]

But a wife is included in succession anyway. Also, just because one of the crappy judicial slumlord pals ignores collateral estoppel doesn't make it binding. Did this case you mention original in an appellate division or an appellate term?

If it's not an appellate division case it's pretty much a fluke. But if it is an App Div, then it would be taught in every law school in the country, unless there was something wrong with the original order or these are rich people where the wife didn't live in the apartment to begin with. That's not a collateral estoppel problem, that's an overreach by the divorce court.

Ronin
www.rentwars.com