For many people, marriage conjures up images of starting a family in a home with little children running around happily. Unfortunately, a person’s expectations about marriage do not always pan out. When the parties to a divorce are dividing assets, one of the most significant issues during property division proceedings involves the parties’ respective interests in the marital home.
So, who gets the house in a divorce? Issues regarding child custody and the parties equity interests typically determine how courts resolve property division issues concerning the marital residence.
Child Custody Considerations
In divorces involving the custody of a minor child, possession of the marital residence may turn on which party has primary custody. Under New York law, courts are required to make child custody determinations based on certain factors related to the child’s best interest. Courts have factored the need for a child to stay in a stable and familiar home environment when making custody order. Accordingly, the party who has primary custody a child may have an exclusive right to live in the home until the child reaches a stage where living in that particular house is not necessary to satisfy their developmental needs.
Alternative, exclusive possession of the marital residence can be temporarily ordered in cases involving domestic violence. The court can grant a protection order allowing a party with custody of a minor child to live in the marital residence at the exclusion of an abusive spouse, pending the outcome of divorce proceedings.
Each Party’s Equity in the Home
A party’s rights regarding real estate, including the marital residence, depends on the nature and extent of each party’s equity. The parties equity can be determined by examining outstanding mortgages, liens, judgments, and other encumbrances on the property in question. If each party some level of equity in the home, courts may order the sale of the home and grant each party a percentage of the sale proceeds corresponding to their equity interests.
Selling the Marital Residence
In order to distribute a home according to the respective ownership interests of the parties, courts usually order the sale of the home and make the parties split the proceeds according to their individual equity interests. Where one party gets exclusive possession of a home, a court can order one party to buy out the other party’s ownership interests.
Consult Goldweber Epstein LLP for Quality Advice
Property division is one of the most contentious issues in divorce cases. If your divorce involves major legal issues regarding the equitable distribution of marital assets in New York, you should consult an experienced attorney for legal advice. At Goldweber Epstein LLP, our legal team is ready to help guide you through complicated matters regarding the division of marital property, such as the division of the parties’ interests in the marital residence.
To schedule a consultation with one of our skilled attorneys, call Goldweber Epstein LLP at (917) 809-7669 or contact us online today.