A House Divided: The Fate of the Family Home in a Divorce

Property division during a divorce can be as simple as the spouses agreeing on a list of assets and debts and then deciding who gets what — with or without a judge’s intervention. While it may indeed be that straightforward for assets like cash or investments, the family home is different, particularly when there are still children living there. It is often replete with memories, emotions and values that cannot be measured in dollars alone. In addition, it is commonplace that one spouse wants to remain in the home, at least while the children are young. This makes the fate of the family home a sticking point in many divorces.

In the property division process, the first thing to examine is when the home was acquired. If it was bought during the marriage, it is automatically part of the marital estate. If one spouse owned the house prior to the marriage, it might be considered that spouse’s separate property. Under New York law, however, the house could be subject to division if the judge decides that it has “transmuted” into marital property based on the specific conduct of the parties.

Assuming the home qualifies as marital property, its value must be fairly divided between the spouses. There are four common ways that this can be handled:

• Selling the house and splitting the proceeds — The home is sold on the open market, the proceeds are used to pay off the mortgage (if any) and the funds remaining are divided equitably between the spouses.
• Agreeing to a buyout — One spouse purchases the other spouse’s equity in the property. This process requires an appraisal (usually) and a price negotiation. It could also require the purchasing spouse to refinance the property.
• Trading assets of equal value — One spouse keeps the home while the other spouse keeps property that adds up to the  same value as the home. The spouse who is leaving the house could, for example, end up with more cars, cash, retirement assets or equity in a family business, or any other asset.
• Granting exclusive occupancy — The parent with primary child custody is given the right to live in the home for a specific time, usually until all the children graduate from high school. Then, either the house is sold and the proceeds split or one spouse buys out the other.

Each method of dividing up the marital home has benefits and drawbacks that need to be carefully evaluated. If you are considering or are in the midst of a divorce, be sure to seek professional counsel about how to handle this unique and valuable asset.

At Bombardo Law Office, P.C. in Syracuse, I leverage nearly 30 years of family law experience to help you pursue the right course. Please call 315-488-5544 or contact me online to schedule a consultation.