Determining Who Gets the House After Divorce in New York


Determining Who Gets the House after Divorce in New York

When a marriage comes to an end in New York, one of the most pressing and emotionally charged questions that arise is, “Who gets the house?” The family home often holds sentimental value and represents a significant financial asset. However, the decision on how to distribute assets in a divorce in New York can be complex, as it depends on various factors, including the specific circumstances of the couple, state laws, and the preferences of the parties involved. In this blog, we will delve into the intricacies of determining property division during a divorce in New York

Equitable Distribution vs Common Law Distribution

Equitable Distribution and common law distribution are contrasting approaches to dividing marital property during a divorce in New York. Common law distribution typically entails an even split of marital assets and debts acquired during the marriage, simplifying the process. In contrast, equitable distribution prioritizes fairness over an equal division. It considers various factors, such as the duration of the marriage, individual financial contributions, and non-financial contributions like homemaking, aiming to distribute assets and debts in a manner that reflects each spouse’s unique circumstances and contributions to the marriage. Equitable distribution allows for a more tailored and flexible approach, often resulting in a distribution that may not be precisely equal but is considered fair in light of the marriage’s complexities.

How Property is Divided During a Divorce in New York

The state of New York uses equitable distribution as the legal framework when looking at property division. Identifying marital property and separate property is important when dividing property after a divorce in New York. Along with that, a proper valuation is essential to provide a fair division of your assets. 

Here are some factors involving the division of property in New York:

  • Duration of the Marriage
  • Contributions to the Marriage
  • Non-Financial Contributions
  • Future Financial Prospects
  • Health and Age
  • Wasteful Dissipation of Assets
  • Custody and Child-Related Considerations
  • Tax Consequences
  • Debts and Liabilities
  • Prenuptial or Postnuptial Agreements

What Am I Entitled To in a Divorce?

When going through a divorce in New York, your entitlements or what you are legally entitled to will depend on various factors, including the specific circumstances of your marriage and the principles of equitable distribution. Here’s what you may be entitled to depending on your divorce in New York: 

  • Marital Property: Assets and debts acquired during the marriage are typically subject to equitable distribution. This includes real estate (e.g., marital home), bank accounts, retirement accounts, investments, vehicles, and personal property.
  • Separate Property: Assets acquired before the marriage, through gift or inheritance, or specified as separate in a prenuptial or postnuptial agreement are generally considered separate property and may not be subject to division.
  • Spousal Maintenance (Alimony): Depending on the financial circumstances and need of one spouse, the court may order spousal maintenance payments from one spouse to the other to provide financial support after the divorce.
  • Child Custody and Visitation Rights: In the event that you have a child involved in the divorce, determinations about child custody, visitation, and parenting time are made based on the best interests of the child. These arrangements can be a significant part of the divorce process.
  • Child Support: The court may order child support payments to ensure that both parents financially contribute to the upbringing of their children. Child support calculations are typically made according to the Child Support Standards Act (CSSA) guidelines.
  • Retirement Accounts and Pensions: Retirement accounts, such as 401(k)s and IRAs, and pension benefits earned during the marriage may be eligible for distribution or division, depending on state law.
  • Business Interests: If either spouse has ownership interests in a business, the court may need to determine the value of the business and decide whether it’s considered marital property subject to division.
  • Health Insurance and Benefits: Health insurance coverage, life insurance policies, and other benefits provided through employment may need to be addressed, particularly if they cover a spouse or dependents.
  • Debts: Marital debts, including mortgages, credit card balances, and loans, may be divided or assigned to one spouse as part of the equitable distribution process.
  • Tax Considerations: Tax-related issues, such as claiming dependents on tax returns and potential tax implications of property division and spousal support, should be considered.
  • Legal Fees and Costs: In some cases, one spouse may be ordered to pay the other spouse’s legal fees and divorce-related costs, especially if there is a significant difference in financial resources.

Can I Buy-Out My Ex-Spouse’s Half of the Home?

Yes, you can buy out your ex-spouse’s share of the marital home in a New York divorce. This process involves one spouse purchasing the other spouse’s interest in the house, effectively becoming the sole owner. It’s important to note that the buyout process can be complex, and both parties should seek legal and financial advice to ensure a fair and legally sound agreement. Additionally, the ability to execute a buyout may depend on the financial resources and creditworthiness of the spouse who wishes to keep the home, as they will need to qualify for financing to cover the buyout amount.

Hire a Brooklyn Divorce Attorney

Understanding your rights and entitlements, as well as the principles of equitable distribution, is crucial to achieving a fair outcome when facing a divorce in New York. Whether it’s the marital home, financial assets, or other property considerations, seeking legal counsel and guidance is essential. Consult with a legal professional at Brian D. Perskin & Associates PC today to understand the specifics of your unique situation.

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