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Your home in a divorce: who gets what?

On Behalf of | Mar 16, 2016 | Residential Real Estate |

When a couple is divorcing, one of the most argued issues is who gets what in the divorce. Property division is a highly contentious issue that can cause divorce proceedings to become complicated. It is important to know how New York handles property division and what you can expect in the divorce process.

Equitable Division

In the state of New York, property and assets are divided according to the law of equitable distribution. This means that personal property, financial accounts and other assets are divided in a manner that is considered equal and fair, but not necessarily 50-50.

If your home is in both your name and your spouse’s name, and was purchased with money that was considered collectively yours together, the home is considered marital property and is subject to division.

How Can A Home Be Divided?

Obviously, a home cannot be physically split between two people. What is divided is the equity in the home.

  • The parent who retains primary custody of the children often is also awarded the home. The parent who does not stay in the home will then be awarded alternative assets in an equivalent amount to their portion of the home.
  • The same happens when a couple has no children: one spouse may retain ownership of the home, while the other spouse is compensated with alternative assets.
  • If it is determined that the home needs to be sold, the spouses will be granted equal portions of the proceeds of the sale, less any debts on the home.

There are exceptions, and property may be divided differently. Courts may take specific situations or issues into consideration when determining how to split property. Of course, if a couple is working collaboratively together to settle their issues, the division of homes and assets may be agreed upon.

To ensure your questions are answered and your rights are protected, it is in your best interests to talk through your divorce and property division issues with a knowledgeable attorney. Your lawyer can explain the process, laws and the potential outcomes.