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Who Gets the Home in a New York Divorce

By David Hammond

In a divorce, the home is usually one of the biggest, if not the biggest, assets involved. This will likely lead you to worry about who will get the home. Property division in a New York divorce is complicated and will involve a number of different considerations. Finding out more about how property is subject to division can help prepare yourself for what lies ahead.

Who Gets the Home in a New York Divorce?

As an equitable division state, New York courts aim to divide marital property in a divorce in a manner that is fair, or “equitable.” Equitable does not necessarily mean equal. The court will attempt to divide the marital property that is fair in light of a number of factors. These factors can include:

  • The length of the marriage
  • The age of each spouse
  • The health of each spouse
  • The standard of living established during the marriage
  • The earning capacity of each party
  • The value of marital property
  • The value of separate property
  • Contributions of each spouse to the marriage (include homemaking)
  • Who will maintain custody of the children (who will be the primary caregiver)

Before these factors are even considered, however, the court will need to determine whether an asset, such as the home, is marital or separate property. Separate property is, generally speaking, property obtained prior to the marriage whereas marital property is generally property acquired during the marriage. It is important to note, however, that separate property can make the transition to marital property. For instance, if the home was purchased prior to marriage, but the other spouse moved into the home and made significant contributions to the home such as making mortgage payments and assisting with the upkeep of the home, the home may then be considered to have transitioned to a marital asset.

Separate assets are not subject to equitable division in a New York divorce. Instead, they remain under the ownership of the spouse that acquired them. Marital assets, on the other hand, will be subject to equitable division.

If your home is considered to be a marital asset and will, therefore, be subject to equitable division, the court has a number of options on how to address this. In some cases, the home may be sold. The proceeds of the sale would then be split between the spouses. Other times, one spouse may want to retain possession of the house and a buyout is arranged. The spouse who wishes to retain the home will buy out the ownership interests of the other spouse. Sometimes, when there are young children involved, the parents will not want to move the children from their home. This helps avoid the need for kids to have to move and maybe have to go to different schools, etc. In this case, one spouse will live in the home with a plan to sell the house further in the future.

Syracuse Divorce Attorneys

If you are getting divorced in New York, you likely have a lot of questions about what the process will hold for you, your property, and your family. The team at CDH Law has answers for you. Contact us today.

About the Author
David is a former military prosecutor and defense lawyer with over a decade of experience fighting for service members and their families. He served nine years and two combat tours as an active duty US Army officer, then joined the Reserves and settled down in Syracuse to be near family. Now representing people across Central New York charged with serious felonies, misdemeanors, DWIs, and traffic offenses, he puts the same level of commitment into his civilian law practice. If you have any questions regarding this article, you can contact David here.