Who Gets the House in a Divorce?

Divorce attorneys protect your interest in your marital residence

In most circumstances, the marital home is subject to the same equitable distribution process as the family car. However, with the home, the court recognizes stakeholders in addition to you and your spouse: your children. At Bryan L. Salamone & Associates, P.C., we understand the legal, financial and emotional issues surrounding the assignment of your home. We work with you to identify your goals, and then we pursue them vigorously, using proven litigation strategies. Over our more than 25 years of aggressive divorce representation, we have earned a reputation for tireless effort and outstanding results.

Statutory factors of equitable distribution address the family home

New York Domestic Relations Law contains fourteen factors the court must consider when deciding on the equitable distribution of a marital estate. The third such factor states: “The need of a custodial parent to occupy or own the marital residence and/or household items.”

The court tries wherever possible to limit the impact of the parents’ divorce on their children. One of the ways to do that is to stabilize the domestic situation, allowing the children to continuing living in the same home and attend the same schools. That makes it possible for a custodial parent, especially one who has full custody, to assert that continued occupation of the home is in the best interests of the children. If that argument is successful, the court may award the custodial parent the exclusive right to occupy the home for a specified period of time. Usually the maturation of the youngest child acts as the benchmark. Depending on the family’s goals for their children’s upbringing, that can be age 18, age 21 or the child’s graduation from college.

Ownership of the house versus the right to occupy

However, occupation is not ownership, so the need to live in the house is not a dispositive reason to own the home. However, when the marital estate contains enough wealth to offset the award of the home, the court may distribute the marital home to the custodial parent.

Of course, all this assumes that the house is subject to asset division as part of the marital estate, and is not one of the assets a spouse owned before marriage. In that case, the court would have to decide if it is still separate property or became part of the marital estate due to commingling during the marriage.

Let Long Island’s largest divorce law firm protect your family home

If you’re concerned about your rights to your home, you need an experienced attorney to manage the equitable distribution process. An experienced and dedicated divorce attorney at Bryan L. Salamone & Associates, P.C. is ready to meet with you. Call us immediately at 1.631.479.3839 or contact us online to schedule a free initial consultation.