Who Gets the Family Home in a New York Divorce?

In a New York divorce, a process called equitable distribution is used to divide marital property fairly, not necessarily equally. This applies to the family home as well, but its unique nature presents some complexities. Unlike stocks or investments that can be easily split, a house is a single, non-liquid asset. In addition, it is often the couple’s single largest piece of property and may have sentimental value as well.

The first step is to determine if the house is considered marital property and thus subject to equitable distribution. Generally, if it was purchased during the marriage, it is considered marital. Even if one spouse owned the house before the marriage, it can become marital property in certain circumstances, such as when the other spouse contributes to its improvement or financing. 

Once the home is established to be marital property (either entirely or in part), the court handling the divorce can order it to be divided according to the same criteria applied in dividing other assets. However, the couple can explore several options for dividing ownership:

• Selling the house and splitting the proceeds — The house is sold on the market, the mortgage (if any) and other debts are paid off and the remaining funds are divided equitably based on the court’s judgment. While clean and final, selling the house can be emotionally difficult and disrupt living arrangements, especially if there are children involved.
• Agreeing to a buyout — One spouse buys the other’s equity in the property. This approach requires an appraisal to determine the house’s fair market value. The buying spouse negotiates a price for the other spouse’s share. This allows one spouse to keep the house, but the feasibility of this option depends on affordability and the availability of financing.
• Trading assets of equal value — One spouse keeps the house while the other receives assets with a combined value equal to their share of the marital home. This could be cars, investments, retirement accounts or even a share of a family business. This option requires careful valuation of various assets to ensure a fair exchange. 
• Granting exclusive occupancy — This option prioritizes stability for children of the marriage. The spouse with primary child custody is granted the right to live in the house for a predetermined period, such as until the children graduate high school. The house is then sold and the proceeds split or one spouse buys out the other’s share. This is normally only granted when children are in high school and have established ties to the school district. 

Each of these methods has benefits and drawbacks that need to be carefully evaluated. If you are considering or are in the midst of a divorce, be sure to seek counsel from an experienced equitable distribution attorney about how to handle this unique asset.

At Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP in St. James, New York, we provide compassionate representation for people going through divorce and all related matters. Contact us online or call us at 631-360-0400 to arrange a free initial consultation.