Legal Question in Family Law in New York
Can I sell marital property?
My lawyer in California has issued a summons and petition to my wife to dissolve my marriage in Calif. She lives in NY and we own an apartment in NY together. The divorce will be handled by CA law - but the marital property is governed by NY law. In accordance to the summons and petition from my lawyer in CA, we have a standard mutual restraining order restraining us from selling or transfering property until the divorce is final. Since the separation of assets falls under the jurisdiction of NY laws, can we legally put the apartment up for sale and possibly sell it if both my wife and I agree in writing that this is what we want to do or would the NY laws have the same restraining order that would require us to have the divorce final before selling this property?
2 Answers from Attorneys
Re: Can I sell marital property?
The temporary restraining order in California is designed to maintain the status quo. Husband and Wife may agree, in writing, to sell or dispose of any property. Selling a property to prevent it being lost through foreclosure is a valid reason for selling it.
New York law would apply to the apartment, to be on the safe side you should consult a New York attorney.
Re: Can I sell marital property?
I do not necessarily agree with you that marital property is governed by NY law. Unless there is a prenuptial agreement, the law of the jurisdiction where the action is commenced (CA) would apply. Of course, further research is needed to verify my opinion.
Nevertheless, to answer your question, if you and your wife consent, there is no NY law that would stop the sale of the apartment. I have handled many divorce matters and sometimes the house or an apartment is sold pending the divorce.
Since there is a restraining order you would technically be violating California law. Therefore, I would think that a "So Ordered" stipulation would be necessary to protect the parties.
If you need help coordinating the sale of your apartment feel free to contact my office.
Mike.
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