Who Gets The House in A Divorce in New York?

Who Gets The House in A Divorce in New York?

Kaylyn McKenna
 | 
Going through a divorce is stressful for all parties. If you own a home together, it may be especially disruptive to your lives. Trying to decide who gets to stay or whether to sell is often a complicated and heated matter, particularly when there are children in the home. Each state has their own rules regarding who gets the house in a divorce, today we will be exploring New York state law to help you find out whether you may be entitled to the house in your divorce.

Equitable Distribution

New York is an equitable distribution state. This means that the court will attempt to distribute the divorcing couple’s property in the most fair and equitable manner. 

However, equitable does not mean equal. As laid out in NY Dom Rel L § 236 (2019), the court will consider a variety of factors such as:
  • How long the couple was married
  • The income and property holdings of each person when they entered the marriage and at the time of the divorce filing
  • Non-monetary contributions to the household such as staying at home to care for the house and children to support the other spouse’s career
  • The age, health status, and probable future financial circumstances of each spouse
  • Whether alimony has been ordered or requested
  • Minor children and the necessity of the custodial parent to remain in the existing family home
  • Wasteful spending or the transfer of assets prior to the filing of divorce in anticipation of the filing
  • Other factors as deemed relevant by the courts

Is the House Subject to Equitable Distribution?

The state of New York does recognize houses and other assets as separate property in some circumstances. One prime example would be houses or property purchased prior to the marriage. The New York state courts do not divide separate property during divorce proceedings and each party is allowed to keep their own separate properties. If you came into the marriage with the home, it is yours.

If you inherited the home from a family member, it will also be considered separate property as long as you inherited it individually. If it was willed to you and your spouse as a joint couple, it may be considered marital property by the courts.

If the house was purchased during the marriage, it is generally considered marital property and subject to equitable distribution regardless of whether both spouses’ names are on the deed.

Who Will Get the House?

If there was a prenup, the courts will abide by it. If not, the couple is encouraged to attend mediation and come to an agreement on how to split their assets, including the home. The couple may agree to sell and split the profits, one spouse may buy the other out, they can retain joint ownership, or one spouse can become the sole owner. There are many ways to split the house, and if the couple comes to a seemingly fair agreement the courts will often approve it.

If no agreement can be reached, the above mentioned equitable distribution factors will be considered and the court will divide the couple’s property in a fair manner. In order to ensure that consideration is given to all relevant factors and arguments, work with an attorney to present all necessary information to the court.

You can use our lawyer search to find an attorney in your area to help you navigate this process.


This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.
 
Kaylyn McKenna

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