2024 Who Gets the House in a Divorce in New York?

Marriage is a contract between two people in which they agree to share their lives with one another and receive all the benefits of doing so. One of the ways in which people decide to combine their lives is to invest money together, often in establishing a family home in which they can have children and grow. However, when the marriage ends, both parties may wonder who gets the house in a divorce in New York.

Unfortunately, this question plagues many couples entering into the process. An experienced New York divorce attorney can offer some insight into how this asset is split equitably.

Equitable Distribution

New York is a state that enforces an equitable distribution of assets in divorce proceedings. This means that marital property is divided 50/50 but in a way that is equitable and fair. When determining what is equitable, the court takes several factors into account. These factors include:

• How long the marriage lasted
• How old each spouse is
• The state of each spouse’s health
• What the established standard of living was during the marriage
• What the earning capacity of each spouse is
• What the total value is of marital property
• What the total value is of separate property
• What the contributions of each spouse were in the marriage
• Who the primary caregiver will be to any children

In equitable distribution, factors such as marital contributions may not be strictly financial. In some cases, courts will view a spouse’s role as someone who stays home and takes care of any children they share as a contribution that allows the other spouse to work and make significantly more money.

Marital vs. Separate Property

When determining how assets such as a house should be divided, the first step is determining if the asset is considered marital or separate property. Marital property is that which is obtained or contributed to during the marriage. Assets like retirement accounts or personal investments are considered marital property for the time that either spouse contributed to it during the marriage.

Separate property is that which was owned by one spouse prior to the marriage. In the case of a home, if it was owned and paid off before the marriage, the spouse who owned it would be entitled to it. However, if part of the home was contributed to during the marriage, then both parties share pieces of entitlement toward the home.

Assets may begin as separate property but are later contributed to in a significant way by both spouses during the marriage. In these cases, the asset can transition from separate property to marital property.

Options That the Court May Take

When determining the final outcome of the home, the court has several options available for the final divorce decree. These options include:

• Joint retention of home. This is uncommon, but it creates an almost equal ownership of the home. In this type of settlement, both spouses own half or a determined percentage of the home after the divorce is finalized.
• Selling the home. Courts can require that the home be sold and the money used toward paying off the mortgage. The remaining proceeds from the sale are then split between both spouses.
• Refinancing the home to one spouse. For this option, one spouse will sign off that they release all financial investment and claim to the home, while the other spouse is tasked with establishing a new mortgage. However, equitable in this situation would mean that the spouse who signs away their rights to the home may be allotted a greater number of other assets.

Each solution comes with its own benefits and difficulties. Knowing which option may be right for you is dependent on the factors and circumstances of your situation. Ultimately, if you and your spouse are able to reach an amicable agreement without the court, you can then control what ultimately happens to the home at the conclusion of your divorce.

FAQs

How Is a House Split in a Divorce in NY?

New York is an equitable distribution state, which means that each spouse is entitled to a fair share of assets, including real property. In an equitable distribution, assets do not need to be divided 50/50 but in a manner that allows both spouses to share in the marital investments. A house could ultimately be jointly owned, signed over to one spouse from the other, or outright sold, with the proceeds split after paying the remainder of the loan.

What Happens to the House in a Divorce in NY?

A home must first be determined to be a marital asset or a separate asset. A marital home is one in which both spouses contribute to the finances of the home, even if one spouse owned it before the marriage. If it is separate property, the spouse who owns the home is the one who is entitled to it at the conclusion of the divorce.

What Is a Wife Entitled to in a New York Divorce?

Divorces are non-discriminatory and allow both husbands and wives the entitlement to an equitable distribution of any marital assets. Both spouses, regardless of gender, have the right to seek spousal support, fight for child support, and argue for a claim on specific assets. To ensure that you are familiar with what you are entitled to, it is wise to speak with a family law attorney.

Does It Matter Who Files for Divorce First in NY?

There is a long-standing myth that the spouse who files for divorce first has a better claim to assets or an advantageous stance in the divorce process. The truth is that being the one who files for divorce does not gain any advantage over the other spouse, as the factors of the final settlement will be based on evidence provided by both parties.

New York Divorce Attorney

There are many aspects of divorce, and homeownership can be one of the most significant. The home has the potential to continue to grow in value and may make it difficult for either spouse to allow the other to have any entitlement to it. If you have questions about a home that you own and how your divorce could impact it, contact the team at Trotto Law Firm, P.C.