Mahoney v. Mahoney

This case presents a novel twist of the proposition that partition of realty will not lie where a prior judgment of divorce has given one of the spouses exclusive use and occupancy of the marital premises until the divorce decree is modified. (Ripp v Ripp, 32 NY2d 755, affd on the opn of the App Div, 38 AD2d 65.)

On September 12, 1974, the parties were divorced and the court awarded plaintiff, the former wife of defendant, exclusive possession of the marital premises until "the youngest child shall have reached the age of eighteen years.” The judgment further stated that the weekly support…