Publication: The Bar Association of San Francisco Bulletin: Volume 10, Number 3
The last few years have been very busy for Bethenny Frankel. After achieving reality TV fame in “The Real Housewives of New York,” she left the show for her own spin off which chronicled her wedding to businessman Jason Hoppy, the birth of her daughter Bryn, and the multimillion dollar sale of her business, Skinnygirl Cocktails. Now on the eve of her own talk show, she is faced with a very contentious divorce.
Frankel recently filed for divorce from Hoppy. She is requesting, among many things, “exclusive use and occupancy of the marital residence.” Hoppy has responded by making the same request. The marital residence at issue is a New York luxury apartment that includes work space for Frankel’s home office. According to the Huffington Post, Frankel has recently vacated the apartment with their daughter and Hoppy continues to reside there.
If the Frankel-Hoppy divorce were in California rather than New York, the Court’s power to determine who resides in the marital home comes from a few sources. Under California Family Code §2045(b), the Court may issue an ex parte order determining the temporary use, possession, and control of real property. In re Marriage of Watts (1985) 171 Cal.App.3d 366 gives the Court the right to charge either party with exclusive use of the home for fair market value pending trial. It is unclear how to determine which party should have temporary use of the marital property when both parties wish to retain use in most cases with two exceptions.
First, in the event of domestic violence, Family Code §6321 specifies that the Court may order the party committing the violence to vacate the home. Second, where a request for delayed sale of the home is made, Family Code §§3800-3810 provides that exclusive use and delayed sale of the home may be ordered at trial so that the custodial parent may continue to reside there with the minor child.
Neither of these examples apply in the Frankel-Hoppy divorce. As a result, the Court would have to look at other facts to determine which party should have exclusive use. Frankel has already moved out with their daughter, which will likely have an effect on the Court’s decision; however, she does have a large home office in the apartment. Both parties are likely able to afford to move. Time will tell how the Court rules on this issue or if Frankel continues to press it now that she has moved out.