Divorce and the Marital Residence

Divorces often aren’t easy. I have spent a number of years now guiding clients through the complications of divorce throughout Long Island, and New York.  I’ve seen very few cases, although they exist, where there is a big dispute over lower priced property like furniture.  Often if there is a dispute over assets it involves higher priced items like the marital residence. For most couples undergoing divorce, the biggest shared asset to consider is the family real estate, marital residence or former matrimonial home, as it is referred to in legal circles. The family home is an emotive subject, and often the largest asset to share amongst parties – though investments, businesses, savings, retirement assets and pensions could be worth more or be considerable assets too.

Although it’s possible to leave the concerns of asset distribution to a judge – I often find that this leads to dissatisfaction for both spouses involved. In most cases, it seems that couples are best served when they exercise their right to come up with personal solutions themselves.  My office gets involved with litigated matters, settlement negotiations, and alternative dispute resolution like mediation and collaborative law.

Agreeing on an Outcome

I often find that if both parties within a divorce still have a civil relationship, and would prefer to end their marriage with a simple, clean, and quick break – selling the property might be a good idea. The only issue that presents itself here is that the individuals involved will need to think about how the proceeds from the home are going to be divided between spouses. Regardless of how you choose to break up the family home, it’s important to remember that if you can agree to a solution using mediation or collaborative law, you can often find a solution that both parties can live with. If the attempt to come up with a solution outside of the courtroom fails, like through settlement negotiations between the lawyers on a case, then the judge presiding over the divorce case in New York will need to make a determination based on existing facts and laws. However, that process will remove the parties’ ability to create a better arrangement between themselves – sometimes causing both parties dissatisfaction with the outcome.

If a court is required to decide the outcome of a property distribution case, then they will need to look at equitable distribution principles as presented by the New York or Long Island Divorce Lawyers. These principles might include, but are not limited to the following concerns:

• The financial circumstances of each spouse
• The financial contributions made by each spouse to the marital home
• The age and mental or physical health of each spouse
• Which of the spouses has custody over the children involved with the case
• The source of funds for the marital home
• Any marital misconduct that might have taken place with either spouse
• Each spouse’s job skills and employability possibilities
• The full value of the marital home

While it is possible that the New York court could rule that the house should be sold after the children involved with the case have graduated from school – meaning that the proceeds will be divided between the spouses at a later date – I often find that it is more common for the court to order an immediate sale. If there is no other agreement in place, this could mean that both spouses are left unhappy because neither can hold onto the house. On the other hand, if an agreement found between the spouses involved through negotiations, mediation or collaborative law, then there are numerous solutions that may be available.

Selling or Keeping the Home

If you choose for one spouse to keep the home – perhaps for the sake of the family children, or in exchange for a larger financial settlement, then you will need to keep in mind that the home mortgage may need to be refinanced in the name of the spouse keeping the home. Similarly, that spouse might need to buy out the other in accordance with their share of equity in the home. Before a buyout can be agreed upon, you will often need an appraisal. In some cases, I might suggest more than one appraisal to ensure that you get a number both spouses agree on. If you get two appraisals and they are both vastly different, then you might need to agree somewhere in the middle, or get an additional appraisal.

It is also possible for both spouses to agree to sell the home. However, besides the emotional aspects of selling a family property, it’s worth remembering that there are other financial considerations involved in selling your home. For instance, if your home has significantly appreciated in value, capital gains may be owed on the sale. That aside, selling the home is generally an easier way to ensure that both spouses get a fair share of the property value during equitable distribution.

What if Both Parties Want the Home?

If both of the spouses involved within a divorce would prefer to keep the home for themselves – either out of financial needs or for emotional reasons, the process of splitting this asset can become far more complicated. Of course, if the other party is willing to walk away from the ownership, the one who chooses to stay can simply buy out the other person’s interest in the property, as mentioned above. However, if both parties hope to keep the property for themselves, and an agreement cannot be reached over who should get the house, then the matter will need to be determined by a judge.  Usually, the court will order that neither party keeps the home, rather it will be sold.  But, this is not a foregone conclusion.

As I noted previously, it is possible for a judge to come up with a number of solutions for spouses who both want to keep the property to be distributed. For instance, ownership may be granted to one party at the cost of other assets that that part would prefer to keep. The idea is that neither spouse should get more out of the divorce than the other. However, in most circumstances, I’ve found that the house is simply sold and the profits are divided between the spouses.

One thing that should remain clear for any person considering a divorce in New York or Long Island, is that the process of splitting property between spouses can be complex. For that reason, it’s crucial to seek the assistance of a competent attorney when it comes to negotiating an appropriate resolution in your best interests. If you want to learn more about distribution in family law, please reach out to me, Mr. Darren Shapiro, to discuss your case.  Individuals seeking the representation of an attorney are entitled to a free half hour initial consultation.  Mediating couples are also encouraged to schedule their free half-hour consultation. You can contact me either via our online form, or over the phone at 516-333-6555.