By Brian Figeroux, Esq.

One of the most contested issues in a New York divorce is determining who gets the house. Since a home is often a couple’s largest asset, its division can be complex, especially when children, financial investments, and emotional attachments are involved.

New York follows equitable distribution laws, meaning marital property—including a house—is divided fairly, but not necessarily equally. This article provides a detailed analysis of the factors that determine who gets the house in a New York divorce, the impact of prenuptial agreements, and alternative resolutions such as buyouts or selling the home.

1. Understanding Marital vs. Separate Property

Before determining who gets the house, it is essential to classify it as either marital property or separate property under New York’s equitable distribution laws.

What is Marital Property?

• Any property acquired during the marriage, regardless of whose name is on the deed.
• Includes the marital home, even if only one spouse’s name is on the mortgage.
• Also includes renovations, mortgage payments, and property appreciation during the marriage.

What is Separate Property?

• A house owned before the marriage may remain separate property.
• A house inherited or gifted to one spouse is usually separate, unless it was commingled (e.g., both spouses contributed to mortgage payments or renovations).
• A home purchased using only separate funds (such as an inheritance kept in a separate account).

If the house qualifies as marital property, it will be equitably divided. If it is separate property, the original owner may retain it, unless marital contributions increased its value.

2. How Does Equitable Distribution Work for a House?

New York does not follow a strict 50/50 split when dividing assets. Instead, courts determine fair division based on multiple factors.

Factors Courts Consider When Dividing a House

1. Length of the Marriage
   • Longer marriages are more likely to result in a shared division of the home.
2. Each Spouse’s Financial Contribution
   • If both spouses contributed to mortgage payments, taxes, and renovations, the house is considered marital property.
3. Each Spouse’s Non-Financial Contribution
   • If one spouse was a homemaker or caregiver, they may still have a right to a share of the home.
4. Who Has Custody of the Children?
   • If one parent has primary custody, the court may allow them to keep the home to provide stability for the children.
5. Each Spouse’s Ability to Afford the Home
   • If one spouse cannot afford the mortgage, taxes, and maintenance, the court may award the home to the spouse who can.
6. Prenuptial or Postnuptial Agreements
   • If a valid prenuptial agreement states who gets the house, the court will typically enforce it.
7. Any Economic Misconduct
   • If one spouse wasted marital assets (e.g., gambling, reckless spending), the court may adjust the distribution of the home.

Because the marital home is a high-value asset, courts take a case-by-case approach when deciding who gets to keep it.

3. What Are the Options for Dividing the House?

Divorcing couples have several options for resolving property disputes, depending on financial circumstances and personal preferences.

Option 1: One Spouse Buys Out the Other

• The spouse who wants to keep the house buys out the other spouse’s share.
• Requires an appraisal to determine the home’s fair market value.
• The buying spouse refinances the mortgage in their name only.

Best for: A spouse who has the financial means to afford the home alone.

Option 2: Selling the House and Splitting the Proceeds

• The home is sold, and the couple divides the profits.
• Proceeds may be split 50/50 or based on each spouse’s contributions.
• Capital gains taxes and real estate fees may apply.

Best for: Couples who cannot afford to keep the home or prefer a clean financial break.

Option 3: One Spouse Lives in the Home Temporarily

• If children are involved, one spouse (usually the custodial parent) stays in the home for a set period.
• After the children are grown, the home is sold or transferred.

Best for: Couples who want to minimize disruption for children.

Option 4: Co-Owning the Home Post-Divorce

• Both spouses remain co-owners and rent out the property.
• Requires a legal agreement detailing responsibilities.

Best for: Couples who are amicable and want to retain the home as an investment.

4. How Custody Affects Who Gets the House

When children are involved, the court often considers the best interests of the child when dividing the home.

• If one spouse has primary custody, they may be allowed to stay in the house until the child reaches adulthood.
• Courts prioritize stability for children, which can influence home ownership decisions.

However, the custodial parent must still prove they can afford the mortgage, taxes, and upkeep.

5. Can a Prenuptial Agreement Determine Who Gets the House?

Yes. A prenuptial agreement (prenup) can dictate who retains ownership of the home in the event of a divorce.

• If the prenup states that the house belongs to one spouse, courts generally uphold this agreement.
• If the prenup is contested, the court may review it for fairness and validity.

A well-drafted prenup can prevent property disputes, making divorce proceedings smoother.

6. Mortgage and Financial Considerations

Keeping the house after a divorce involves financial obligations, including:

• Mortgage Payments: The spouse keeping the house must refinance the mortgage to remove the other spouse’s name.
• Property Taxes: The new sole owner is responsible for tax payments.
• Maintenance Costs: Repairs, upkeep, and renovations must be considered.

If a spouse cannot afford the house alone, selling is often the best option.

7. What If the Home Has a Mortgage with Both Names?

If both spouses are on the mortgage, the loan must be refinanced or paid off before one spouse takes full ownership.

Options include:

• Refinancing in one spouse’s name.
• Selling the home to pay off the mortgage.
• Both spouses remaining on the mortgage temporarily, if necessary.

If the spouse awarded the house defaults on payments, the other spouse may still be liable if their name is on the loan.

Conclusion

Determining who gets the house in a New York divorce depends on whether the home is marital property, financial capabilities, child custody arrangements, and legal agreements.

• If the house is marital property, courts divide it equitably based on financial and personal circumstances. A spouse can keep the home by buying out the other or negotiating a settlement.
• Selling the house is often the best solution if neither spouse can afford it alone.

Because each case is unique, it is advisable to consult with a divorce attorney or mediator to ensure the best outcome for both parties. Understanding New York’s equitable distribution laws helps spouses make informed decisions about one of their most valuable assets.

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