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Divorce and the Marital Home April 14, 2014

Midtown East, Manhattan
Divorce and the Marital Home, Manhattan, New York

The marital home is, without a doubt, the biggest asset involved in divorce cases in New York State. If the home was purchased during the marriage, with funds earned during the marriage, then it is subject to equitable distribution. There can be many questions or misconceptions that parties have regarding the marital home, since many people are not aware of the laws surrounding what to do with it.

Q: If I move out during the divorce, will I no longer be entitled to half of its value?

A: Prior to 2010, and before New York Stated adopted the no-fault divorce law, it would be considered abandonment if one party were to move out of the marital home before the divorce. This is because the plaintiff would be able to claim the defendant abandoned them, their children, and the property, in the divorce filing.

However, this is no longer the case. While abandonment is still a valid ground for divorce in New York, a spouse won’t lose their interest in the marital residence’s value if they are to vacate the home in lieu of divorce.

Q: I’m not interested in living in the marital home after the divorce. How can I get my share of its worth?

A: There are a couple of different options that can be included in your divorce settlement that will outline a plan of action when it comes to the residence. 1) You and your former spouse can agree to sell the home within a reasonable amount of time, and split the money earned from the sale. Usually assets are split 50/50 as a result of equitable distribution, however, every divorce settlement is different and your percentage of the sale will be determined by said agreement. 2) You can request that your ex-spouse refinance the home’s mortgage so your name can be removed from the property, and then pay you for your share of the home’s worth. Payment can be given in one lump sum or through smaller payments that can be deducted from retirement accounts and included with alimony payments.

Q: Even though we are getting divorced, do I have to move out of the marital home?

A: No, you do not. If your divorce is particularly messy and there is a great deal of tension between you and your spouse, then you probably shouldn’t continue to live with them if it is impossible to cohabitate peacefully. On the other hand continuing to reside amicably under the same roof with your spouse can be incredibly beneficial if you have children. Children of divorce are able to cope better and function normally if their parents are able to co-parent successfully. You should not attempt to remain living in the marital residence with your spouse and children if you two cannot get along. This can be damaging to the children, and their best interest should always be the most important factor in a divorce.

Q: Can a judge force my spouse and I to sell the marital property during our divorce proceedings?

A: A judge cannot order parties to sell the marital property during their divorce proceedings; however, a judge can include an order directing the parties to sell the property after their divorce is finalized. Typically, a judge will not issue this kind of order if the couple has children. If the spouse who is granted physical custody of any school aged or minor children is capable of paying carrying costs and maintaining the home, then a judge would rather keep said children in their home.

Deciding how to best handle marital assets, including any shared property acquired during the marriage, is a very difficult and tedious process. Oftentimes, parties will disagree on the appropriate course of action, and settlement negotiations will need to take place. This is when having an experienced matrimonial attorney on your side. The lawyers atBrian D. Perskin & Associates are well versed in divorce and family law, and continue to negotiate fair settlements on their client’s behalf. Call (212) 355-0887 or (718) 875-7584 todiscuss your case with an attorney today!