Who Gets the House in a Divorce in Manhattan, NY

Written by Yonatan Levoritz on December 28, 2024

Who gets the house in a New York divorce? At The Levoritz Law Firm, we guide clients through the state’s equitable distribution process, where the court divides marital property fairly, though not always equally. In New York, the family home purchased during the marriage is generally considered marital property and subject to division.

A house owned by one spouse before marriage is typically treated as separate property and may be excluded, primarily if it remained separate throughout the marriage. Discover how financial contributions, child custody, and property classification can affect who keeps the home. Contact us today for personalized support.

What Is Equitable Distribution?

Equitable distribution is how New York courts will divide marital property upon a divorce. It does not necessarily mean 50/50. Rather, it is a fair division between the parties based on such factors as the respective financial condition of each spouse, their respective contributions to the marriage, and what may be needed in the future.

How Is an Equitable Split Decided?

The New York courts consider several factors in making a determination as to how marital assets, including the house, are to be divided.

• • The income and property each spouse had at the time of the marriage and at the time of filing for divorce
  • The length of the marriage
  • The age and health of both spouses
  • The need for a custodial parent to live in the family home
  • Each spouse’s contribution to the marriage, including homemaking and raising children

Who Gets the House in a New York Divorce?

In New York, the decision of who gets to stay in the marital home exclusively pending the divorce is decided upon by various factors, which all try to achieve justice and stability. The courts make their decisions based on the best interests of the children, including age, present living arrangements, and community ties. Financial situations, including income, assets, and liabilities, are also considered by the court when reaching a decision.

The second factor would be domestic violence or abuse, where the court will first consider the safety of all parties. The ability to maintain the property—including covering mortgage payments, property taxes, and upkeep—is another key factor. Prenuptial agreements and cases of abandonment are also taken into account, with decisions aligned to New York’s equitable distribution laws to achieve a just outcome for both parties.

Determining Factors for Home Ownership

• Custodial Parent Needs: If there is primary custody of the children with one spouse, then the court typically will want to keep the children in their home to provide stability and minimize disruption in their lives, especially as it relates to school and community.
• Financial Contributions: The court looks at each spouse’s financial contributions to purchasing and maintaining the property. This includes mortgage payments, renovations, and other financial responsibilities tied to the home.
• Non-Financial Contributions: Contributions as a homemaker or caregiver are also taken into account. While these are not monetary in nature, they contribute considerably to the maintenance of the household and the stability of the family.
• Other Assets: If the house is granted to one spouse, the court may offset this with other assets to the other spouse. The other assets may be liquid or have other properties to affect an equal partition.

Court Decisions on Home Distribution

• Grant Exclusive Use and Occupancy: The court may give one spouse exclusive use and occupancy of the marital home, especially if children are present. This setup works towards allowing the children to remain in an environment they are accustomed to for stability.
• Sell the House and Divide Proceeds: Sometimes, the court orders the sale of the house to divide the money between the spouses. It will happen if either one of both spouses can no longer afford the property or division of the proceeds is fair for the spouses.
• Buy-Out Option: One spouse may be allowed to buy out the other spouse’s share of the property. Such an agreement would allow one party to continue owning the home while the latter party is justly compensated for his or her share. It is normally considered when one spouse is in a very strong financial position or has a great attachment to the home.

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Options The Court May Consider Regarding The Marital Home

When deciding who gets the house in a divorce in New York, judges apply the equitable distribution framework in New York Domestic Relations Law Section 236(B) (DRL § 236[B]), which focuses on fairness rather than a strict 50/50 split. The marital home is often one of the most valuable and emotionally charged assets, so the court evaluates financial realities and the well-being of any children involved.

Recent data indicate that approximately 50% of New York divorces involve minor children, making court intervention over the marital home, through awards of exclusive occupancy, sales, or transfers, common. While exact figures for each remedy are not publicly tracked, this statistic underscores how often property division decisions directly impact the family residence.

Possible court-ordered outcomes include:

• Exclusive use and occupancy to one spouse for a defined period, often awarded to the custodial parent.
• Immediate sale of the property, with net proceeds divided based on equitable shares.
• A buyout arrangement, where one spouse purchases the other’s interest at an appraised value.
• Deferred sale tied to a specific event, such as a child graduating from high school.

As the New York City Bar Association notes, decisions weigh affordability, property maintenance capability, and the potential disruption to children.

Can You Keep The House Without Going To Court?

Yes, if both spouses reach a legally binding agreement. Many couples avoid courtroom disputes by setting out ownership terms in a settlement agreement. This can resolve who will keep the home, how equity will be distributed, and who will handle outstanding mortgage obligations.

Common approaches include:

• Mediation, where a neutral third party facilitates an agreement.
• Collaborative divorce, in which both parties commit to resolving issues outside litigation.
• Private negotiation between the parties’ attorneys.

Even when you avoid the courtroom, agreements should be properly drafted and filed with the court as part of the divorce to make them legally enforceable under DRL § 236(B).

Legal And Financial Considerations Before Keeping The Home

Retaining the marital home can be emotionally reassuring, but may create long-term financial strain. Before committing, assess both immediate and ongoing costs:

• Mortgage affordability after divorce, especially if your income changes.
• Maintenance and repairs may be significant over time.
• Property taxes and insurance must remain sustainable on a single income.
• Impact on overall asset division, since taking the home may require giving up other valuable assets.

In the New York metro area, about 2.2% of mortgages are at least 30 days delinquent, with 0.7% more than 90 days overdue—a reminder that even modest financial stress can lead to payment difficulties. Choosing to keep the home without adequate resources can leave you with substantial equity but insufficient liquid funds to manage expenses.

Marital Vs. Separate Property In Manhattan

Under DRL § 236(B), marital property is generally any asset acquired by either spouse during the marriage, regardless of whose name appears on the deed or title. Separate property includes assets owned before marriage, inheritances, and certain third-party gifts.

However, property classification is not always straightforward. A home purchased before marriage may become marital if:

• Marital funds were used for mortgage payments.
• Both names were added to the deed.
• Renovations were funded jointly, increasing the home’s value.

Financial records and credible testimony are key in determining whether separate property claims hold up in court.

FAQ’S About Property Division In NY Divorce

What Is a Wife Entitled to in Manhattan Divorce?

A wife in Manhattan has a right to share the marital property that could include real estate, among others, acquired during the course of the marriage. She can also be entitled to spousal maintenance, at the discretion of the financial condition of both spouses.

Can My Spouse Take the House If I Bought It Before the Marriage?

Generally, no, unless the property was converted into marital property through commingling or substantial contributions by your spouse. Under DRL § 236(B), a home purchased before marriage is typically considered separate property. However, specific actions can change that classification. If marital funds were used for mortgage payments, significant renovations, or taxes, the court may view part, or all, of the home’s value as marital. Adding your spouse to the deed also creates a presumption of shared ownership. The longer the marriage and the greater the marital investment, the stronger your spouse’s claim may become.

Do Prenuptial Agreements Affect Who Gets the House?

Yes, if valid, they can override default property division rules. A prenuptial agreement under New York law can clearly define whether the marital home is treated as separate or marital property. It can also set specific terms for buyouts, exclusive occupancy, or sale in the event of divorce. For the agreement to be enforceable, it must be in writing, signed voluntarily, and meet disclosure requirements. Courts will uphold these agreements unless proven unconscionable or signed under duress.

What Happens If We Both Want to Keep the House?

The court will decide based on financial capacity, child custody, and equitable distribution principles. In many contested cases, the judge considers who can afford the property independently, who has primary custody of minor children, and whether a buyout is feasible. If neither party can manage the costs alone or agree on terms, the court may order the home sold and the proceeds divided. In high-conflict situations, a neutral appraiser may be appointed to determine the property’s fair market value.

What Is a Partition Action in Divorce?

A partition action allows the court to force the sale or division of jointly owned property. This is often used in Manhattan when co-owners, whether divorcing spouses or former partners, cannot agree on what to do with shared property. The court can order the property sold at market value or, in rare cases, physically divided if feasible. Partition actions are separate legal proceedings but may be joined with a divorce if ownership disputes remain unresolved. They are a last resort when negotiation fails.

Can We Sell the House Before the Divorce Is Finalized?

Yes, but the proceeds are typically placed in escrow or otherwise safeguarded until the divorce is finalized. Selling before the case concludes can be practical when neither spouse wishes to keep the property, but it requires court approval to prevent disputes over the division of proceeds. The funds are then distributed as part of the final settlement or judgment under DRL § 236(B). This approach can also avoid ongoing carrying costs, but parties should carefully document the sale terms and ensure compliance with court orders.

Get Legal Help To Protect Your Property Rights

When it comes to who gets the house in a divorce in Manhattan, timing and strategy matter. The Levoritz Law Firm has the experience to protect your home and financial future. Call (718) 942-4004 today for a confidential consultation and start building a plan that safeguards what matters most to you.