Who Gets the House?

New York divorce attorneyWhen considering bringing a divorce lawsuit and there is a marital home involved, a question arises as to what will happen to the house in the divorce case. Assets acquired during the marriage are considered marital property. If the home was acquired during the marriage, it is a marital asset. (If the home was acquired by one of the parties to the marriage prior to the marriage, it is separate property and may not be distributed in the divorce. However this is a different topic than what this article is about, and I will not be going into details concerning what happens to the home as separate property in divorces at this time.)

Appraisal of the Home

It will be necessary to appraise the home to establish its market value. Thereafter one would have to take into consideration the amount of the mortgage on the house. By subtracting the mortgage from the value of the house, you arrive at the home’s equity. Let’s assume for argument sake there is going to be a 50/50 split of marital assets. In this example, let’s say the home is worth $400,000 and there is a $100,000 mortgage remaining on the property. The homeowners would thereafter have equity in the amount of $300,000 and each of the parties would have an equity interest of $150,000.

If there is plenty of cash available, the party who wants to keep the home can exchange a marital asset worth approximately $150,000 for the other party’s ownership interest in the house. If there aren’t any liquid assets a trade can be made with regard to pension benefits or 401(k) assets. However it should be noted pension and 401(k) assets are pretaxed assets and therefore they would have to be tax impacted on before an exchange for a real estate interest could be made.

Is the Home Affordable?

One of the issues which must be faced by the party seeking to purchase the home is whether after purchasing the home, he or she will be financially able to maintain the mortgage, taxes, utilities, upkeep and maintenance on the home. Homes can be expensive to maintain and the issue of affordability should be closely looked into before making any financial arrangements.

Residential Custody of the Children in the Home

Many courts will give the parent who obtains residential custody of the parties’ children exclusive occupancy and possession of the home until such time as the youngest child is either 18 or 21 years of age.


The issue of one of the parents keeping the home may be more complicated than it looks to be at first glance. The best way to deal with this matter is to meet with an experienced divorce lawyer and go through all of the details with him or her.father's rights lawyer in New York

About Elliot S. Schlissel

Elliot S. Schlissel, Esq. has spent more that 45 years representing individuals in matrimonial and family law cases.