Who Gets the House in a Divorce?

Long Island divorce attorneys advocate for spouses in conflicts over a marital residence

In most circumstances, the family home is subject to the same equitable distribution process as the other property. However, courts recognize that children living at home also have a stake in the decision on which spouse receives the residence. At Bryan L. Salamone & Associates, P.C., we understand the legal, financial and emotional issues surrounding the treatment of your home during the division of marital property. We work with you to identify your goals, and then we pursue them vigorously, using proven litigation strategies. Over more than 25 years of aggressive divorce representation, we have earned a reputation for tireless effort and outstanding results.

How New York’s equitable division law impacts who gets the house in divorce

New York is an equitable distribution state, which means parties get to keep their separate property, but divide the marital property in a way that’s fair, but not necessarily equal. It’s important to note that property includes assets and debts.

Separate property consists of:

  • Property owned before the marriage and kept separate during the marriage
  • Inheritances and nonmarital gifts directed to one spouse during the marriage.
  • New property acquired using separate property

Given these conditions, the family home is rarely separate property. Even if one party purchased the home before marriage, mortgage payments would be made during the marriage from earnings which are considered marital property. This leads to a situation known as commingling, where a separate asset is reclassified as a marital asset, giving the other party an equitable interest in the property. Often, the marital home is a couple’s most valuable asset, so there might not be enough remaining property to offset an award of the home to one party. For this reason, parties look for creative solutions, such as a sale of the home, or an award of possession to one spouse rather than full ownership. If the parties do not have children, disposing of the home is usually much easier.

Statutory factors of equitable distribution address the family home

New York Domestic Relations Law contains fourteen factors the court must consider when ruling on asset division in a divorce. The third factor states: “The need of a custodial parent to occupy or own the marital residence and/or household items.” Courts generally weigh this factor heavily in favor of the custodial parent. In the interest of stability, 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 as to whether this factor should be invoked. Depending on the circumstances, that might occur when they turn 18 or graduate from college.

Ownership of the house versus the right to occupy

Occupancy is not ownership, so it’s possible one party might continue to live in the home, while the other maintains an interest in the house while contributing to mortgage payments and maintenance costs. This arrangement is not just for parents but is also appropriate during slumps in the real estate market, where selling would result in financial losses, or times when the tax consequences of a home sale would be onerous. It might seem inherently unfair for one party to live in the house while the other helps to pay for it, but an experienced lawyer can help you offset this imbalance through allocation of other assets or awards of equity in the home.

The role of prenuptial and postnuptial agreements on dividing a home in divorce

Marital agreements are designed to eliminate haggling over property in the event of a divorce. Agreements that have been negotiated in good faith and which comply with New York law should be enforced by the court. However, that doesn’t mean a party won’t challenge the agreement, forcing you to litigate the matter.

Valuing real estate in a New York divorce

Home value is a major factor to consider. If the value is inflated, as during a bubble in the real estate market, the valuation can skew distribution of the estate. Parties who hire their own appraisers can receive conflicting valuations, which might trigger litigation. If the market is performing well, you might collect a high price for the house, but you cannot overlook the tax exposure that could come with sale proceeds. An experienced attorney can protect your rights as you consider various options.

What happens if the home was inherited by one spouse?

This situation would seem to give separate ownership to the heir. However, even when a property is fully paid off, maintenance costs and property taxes continue. Unless those expenses were paid with separate funds, a court will likely find commingling and grant the other spouse an ownership stake.

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

If you’re concerned about the disposition of your home during a divorce, contact an experienced and dedicated attorney at Bryan L. Salamone & Associates, P.C. Call us immediately at 1.631.479.3839 or contact us online to schedule a free initial consultation.