The marital home is typically the largest asset to divide in a divorce. It is also the center of a family’s life and serves as a place of safety and comfort to children as they grow up. During a divorce, matters regarding asset and property division can quickly become contentious. In most circumstances, the marital home is subject to equitable distribution, meaning it will be divided in a fair manner, which does not necessarily equate to equal. So, who is entitled to the house during a divorce? Today, we will look at the factors the courts refer to when determining equitable distribution with an emphasis on who gets the family home in a divorce.
Equitable Distribution as it Relates to the Family Home
The court will determine which property is separate, or property acquired before marriage, and community property, or property acquired during the marriage before dividing any assets and property. New York Domestic Relations law contains 14 factors the court must consider when deciding the equitable distribution of a marital estate. These factors relate to how much each spouse contributed to the marriage. One of these factors is the need of the custodial parent to occupy or own the marital residence.
In some instances, it may be more beneficial for the custodial parent to receive the marital home to limit the impact the divorce might have on the children. The court does its best to do what is in the best interest of the children and if keeping them in the same house they grew up will contribute to their wellbeing, they may wish to keep the house with the custodial parent. Additional reasons why the custodial parent may be awarded the marital home may include but are not limited to the following:
- Allow the children to attend the same school
- Provide the children with familiarity and a routine, which are important for their mental health and wellbeing
If this does happen, the custodial parent will typically be given the right to occupy the home for a certain period. This is usually until the youngest child matures, which could be age 18 or whenever the child graduates from college.
Additional Factors the Court Will Consider When Dividing Property
During the equitable distribution phase of your divorce the court will also consider the following factors:
- Duration of the marriage
- Income level and earning potential of each spouse
- Age and mental and physical health of each spouse
- Each spouse’s contributions to the marriage and the other’s education or earning potential
- Nature of the property involved
- Each spouse’s preferences regarding property division
- Wasteful dissipation of assets and/or property prior to divorce
If there are no children involved in the divorce proceeding, the court will rely more heavily on the factors above. The courts divide assets and property in a manner they consider fair. In New York, this does not always equate with a 50/50 split, however; the court system will do its best to be equitable.
Let Simon Law Group, PLLC Assist You with the Equitable Distribution Process
At Simon Law Group, PLLC, we are dedicated to our clients’ success. We provide results-oriented representation for clients seeking to obtain a favorable divorce outcome. If you need assistance navigating your divorce and have concerns regarding who will get the marital residence, contact our firm today. We will strive to help you reach a fair settlement and ensure your legal and property rights are protected.
Schedule an initial consultation with our firm online or call us at (631) 237-9525 to learn more about our comprehensive divorce services.