Who Gets The House In A Divorce?

From our sister site: NewYorkDivorce.Net

If you are in the process of getting a divorce, you may be wondering who gets the house in a divorce?

Who gets the house in a divorce is a common question. In addition, if one spouse gets the house who pays the mortgage? 

Who gets the house in a divorce is important because in many marriages the home is the largest asset. Typically, from the moment a couple gets married, any property purchased during the marriage becomes joint marital property. As such, a divorce judge in New York will equitably distribute marital property between spouses.

Property that is not subject to equitable distribution includes any property acquired prior to the marriage or any property or money gained from inheritance or a gift.

During a divorce, both parties technically have a right to live in the home, unless a court orders that one party has the sole right to live there and the other must stay away, otherwise they can live together or one spouse can choose to live elsewhere.

When a judge considers the home in a divorce they look at five variables:

  1. A judge looks at more than just the title of the home, as a home may or may not be in one spouse's name. If one spouse is not on the title, they may still have rights to the house depending on if the house was purchased during the marriage.
  2. What funds were used to buy the house? Were marital funds used? If it was then both parties may have equitable interest in the home. Sometimes one spouse spent their personal savings to purchase the home. Sometimes the funds are obtained from a gift from one spouse's parents or may be in the form of a loan from a parent. In some cases, the home is considered separate property and returned to the spouse that contributed the funds to purchase it.
  3. Who primarily paid the mortgage? A judge may order that spouse to continue paying.
  4. How long had the couple owned the house?
  5. Are there any children, what are their ages, who has primary custody of the children and did these children primarily grow up in this house? The parent with primary custody of the children may also be awarded the family home.


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