New York Divorce: Who Gets The Family Home

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A couple arguingIn most cases, a divorcing couple’s family home would be subject to equitable division laws that New York courts follow during divorce. However, if children are involved, the court will take into account other stakeholders, your children, aside from you and your spouse.

Factors that Impact the Marital Home

The New York Domestic Relations Law states specific factors that courts should take into account when trying to determine who should get the family home. One of these factors is the need for the custodial parent to own or occupy the family residence as well as the household items.

As much as possible, courts would try to limit the effect of the divorce on the kids. One of the tactics courts use to lessen the divorce’s negative impact is to stabilize the kids’ domestic situation, which would enable the kids to continue staying in their own home and going to the same school.

This way, the custodial parent, particularly a parent that has been awarded sole custody, could assert that her or his continued occupation of the family residence is in the children’s best interests. If the court finds this argument valid, the court might consider giving the custodial parent the right to live in the house for a set period, with the benchmark commonly being the time the youngest child matures. Depending on your goals for the upbringing of your children, this could be at around 18, 21 years old, or the age when the children graduate from college.

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Other Crucial Factors to Consider

Do take note that ownership is different from occupation, which means that one’s spouse requirement to stay in the marital residence isn’t a dispositive reason for ownership, states one of the top divorce lawyers in Nassau County. But if the marital estate has sufficient wealth to offset awarding of the house, the court might award the house to the custodial parent.

This is, of course, assuming that the home is subject to property distribution because it’s considered marital property and not an asset owned by one spouse prior to marrying. If that’s the case, the court will need to decide if it’s considered separate property or marital property because of commingling when the spouses got married. If you have any concerns about your marital residence, it’s best to consult an experienced lawyer to know your rights.