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Getting a Divorce and Living in a Rental? New York City Divorce Attorney

New York City divorce attorney
Getting a Divorce and Living in a Rental? New York City Divorce Attorney

When two people go through a divorce and still live together,  it is inevitable that the question, at some point, turns to who gets to stay in the residence. This question becomes even more murky when the residence is a rental. After the divorce is finalized, one party will, most likely, have to vacate the residence. Who is forced to vacate can hinge on a few different factors. According to New York City divorce attorney, absent an agreement between the parties, the Court will look at the facts and issue a decision that, in its view, is the most equitable under the circumstances.

The Court may look to see if both parties are on the lease. If not, the party on the lease may have strong footing to stay in the rental. If both parties’ names are on the lease, it is possible that the Court could look to see if one party resided in the apartment prior to the marriage and use that as a determining factor. It is also possible the Court will look to see if only one party is paying the rent, regardless of who is on the lease. The Court may also determine whether one party has been paying the rent, by themselves, for a long time. It may also look at the respective incomes of the parties, to determine whether or not both could afford the rent.  Sometimes, if there are children involved, the Court is less likely to force the custodial parent to move, citing the fact that the children should not be forced to move from their home.

Getting to the point of a final resolution of a divorce matter takes time says New York City divorce attorney, Sarah Smith, with the Kleyman Domestic Relations Law Firm. Between the time of separation and the time that two people come to an agreement, or the Court issues an Order, there is a lot of time where two people could be fighting over their respective rights to occupy the martial apartment. Moreover, generally, New York State holds that one person does not have a superior right of occupancy over another person, if both parties reside at the same residence at the time of commencement. It does not matter who is on the lease, or who pays the rent. New York will likely not simply kick one spouse out of the apartment solely because two people are going through a divorce.

However, if there is domestic violence and one party is granted a full stay-away Order of Protection, the perpetrating spouse will be forced to stay away from the residence. Courts do not look to see who is on the lease or who pays the rent in those circumstances. Instead, the Court focuses on what is needed to ensure the safety of both parties.

Furthermore, New York City divorce attorney says if there are children involved and one spouse is making the environment unhealthy and uncomfortable for the children, the Court could decide to award exclusive use and occupancy of the residence to the custodial parent. This is because the State wants the lives of children to be impacted as little as possible by their parents’ divorce.

Also, sometimes one party may decide to vacate the apartment on their own. In that case, it is important to have the management company change the lease so that the remaining spouse is the only one on the lease. That would absolve the vacating spouse of the need to pay rent, but would also no longer allow them entry into the apartment. That would grant the non-vacating party exclusive use of the apartment as well. It is also important to change the locks in the event of that occurrence.

It is always important to speak with a lawyer you trust to gain perspective on what your legal rights and obligations are. Please feel free to reach out to us if you have any questions. We are here to help you!

New York City divorce attorney, Sarah Smith, is an associate at the Kleyman Domestic Relations Law Firm, handling divorce and family law matters in New York. The Kleyman Domestic Relations Law Firm is located at One Rockefeller Plaza, 11th Floor, New York, NY. For more info go to, email: or call 212-401-1977.

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