ALLEN v. ALLEN (2023)

Order, Supreme Court, New York County (Ariel D. Chesler, J.), entered on or about December 21, 2022, which, to the extent appealed from as limited by the briefs, ordered defendant husband not to de-Kosher the family homes and prohibited the parties from having romantic partners in the homes, unanimously modified, on the facts, to the extent of vacating the provision prohibiting the parties from having romantic partners in the residences, and otherwise affirmed, without costs.

Under the circumstances presented, the court did not run afoul of the Constitution by ordering the husband to maintain the 20–year status quo and not de-Kosher the parties’ homes during the pendency of the action.  Contrary to his argument, the husband is not being impermissibly required to practice a particular religion or adhere to a particular religion in the home or being precluded from expressing himself and living freely (see Colley v. Colley, 200 A.D.2d 839, 840, 606 N.Y.S.2d 796 [3d Dept. 1994];  cf.  Weisberger v. Weisberger, 154 A.D.3d 41, 53–54, 60 N.Y.S.3d 265 [2d Dept. 2017]).

However, it was an improvident exercise of the court's discretion to preclude the parties from bringing romantic partners to the marital residences.  While under Domestic Relations Law § 234, the court has some discretion to make orders regarding possession of property under the circumstances of each case, nothing in the record demonstrates that the presence of the husband's romantic partner at one of the marital residences in any way impacted plaintiff wife's safety.  A party going through a divorce has “a right to develop his or her interests or personal life” (Rosenberg v. Rosenberg, 126 A.D.2d 537, 540–541, 510 N.Y.S.2d 659 [2d Dept. 1987]).  At most, the interactions with the romantic partner, which by all accounts were civil, made the wife uncomfortable, and discomfort is an insufficient basis to exclude an otherwise non-problem-causing party, particularly where children are not involved.