Who Gets the Marital Home After Divorce?

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When parents get divorced, a common concern is the disposition of the marital home. The custodial parent often wants to stay in the home with the children in order to avoid disrupting their lives. New York law recognizes that this presents a unique situation and affords special treatment to marital homes if there are young children involved.

Normally, a marital home is a marital asset subject to equitable distribution. The home is either sold and the proceeds divided between the spouses, or one spouse may buy out the other spouse’s share if he/she wants to keep the home. However, where there are minor children, the court may allow a custodial parent to stay in the home with the children under the following circumstances:

  1. The parents can afford the home. If the custodial parent cannot afford the home expenses on his/her own, the other parent may be required to contribute to those expenses. If both parents cannot jointly afford the expenses of the marital home, then it will likely be sold.
  2. Operating expenses related to possession of the home are generally paid by the party residing there. As discussed in a previous post, housing is among the basic expenses covered by child support. If, however, there are capital expenses that the parties want or need to make to the home, the same may be allocated pro rata between the parties depending upon the facts giving rise to the expenses and the parties’ respective financial position.
  3. Time limit on staying in home. If it is affordable, the judge will likely allow the custodial parent to remain in the home until the youngest child reaches 18 years of age. After that, the parent having possession of the home is generally obligated to either buy out the other party’s interest in the home or sell it with the proceeds divided between the parties as provided under equitable distribution rules or as they have otherwise agreed.

Divorce is difficult on children and, where possible, courts want to help parents maintain their children’s home during this period to ease their transition. Notably, housing is one the basic expenses intended to be covered by the child support formula in New York. However, if a parent receiving child support is also receiving spousal support, the formula for calculating spousal support compensates for any apparent double payment of housing costs since the custodial parent and children share much of the space they occupy.

If you are a parent considering or facing divorce, it is important to have a skilled attorney who can help you come to a fair resolution of your financial and custody issues. Contact us for advice regarding your matter.

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