Who Gets the House in a Divorce in New York

Written by Yonatan Levoritz on December 28, 2024

Who gets the house in a New York divorce? At The Levoritz Law Firm, we provide expert legal guidance to navigate New York’s equitable distribution laws. Discover how factors like marital vs. separate property, financial contributions, and child custody impact who gets the house during a divorce. 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

Differences Between Marital Property and Separate Property in New York

Separate Property

Separate property includes any property acquired pre-marriage and any property received by gift or inheritance exclusively to one spouse. A house owned by one spouse before the marriage is separate property to the extent it was never commingled with the marital estate.

Marital Property

Marital propertyincludes all assets acquired during the marriage, regardless of whose name the title is in. If a house was purchased after marriage, it will likely be considered marital property and, therefore, subject to equitable distribution.

Can Couples Agree on How to Divide Their Property?

Yes, couples can come to their own agreements over property division, including who gets the house. Many couples would rather negotiate a settlement than leave the decision to a judge. This may save time and money and relieve the emotional stress for everyone involved.

FAQ’s

What Is a Wife Entitled to in New York Divorce?

A wife in New York 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.

How Are Assets Split in a Divorce in NYS?

A wife in New York 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 Wife Take My House if I Bought It Before Marriage in NY?

A house purchased prior to marriage is typically considered separate property. However, it may be divisible if it has been commingled with marital funds or used as the family home.

Getting Help With Property Division in Divorce

Property division during a divorce is a complex process that requires careful consideration of New York’s laws. The Levoritz Law Firm prides itself on its services in representing the rights and interests of our clients toward an equitable outcome. Contact us today at (718) 942-4004 or visit us at 140 Broadway # 46, New York, NY 10005.