White Plains Divorce & Family Law Attorney
The division of assets, property and real estate holdings in a divorce can become a highly complicated, lengthy and emotionally-charged process.
This division must first take into account whether property and other assets are determined to be separate property or marital property.
In general terms, separate property is that which one spouse owned prior to the marriage. Marital property and assets are those which were obtained during the marriage and/or were contributed to by both spouses.
For many couples, the family home is the primary real estate asset they hold in common and often becomes the source of intense conflict in their divorce proceedings.
New York State adheres to the concept of “equitable distribution” in divorce, which maintains that asset division is meant to be as fair as possible. Fair division does not necessarily mean equal division.
There are numerous factors the court can take into consideration when deciding issues of equitable property division, including the family home, such as:
- Is the house separate or marital property?
This question is often more complex than it may appear on its face, and the facts of each individual case may affect that determination.
- The length of and established standard of living during the marriage, as well as the age and health of each spouse.
- The earning capacity of each spouse.
- The total value of separate property and marital property.
- Which spouse is the primary custodial parent and caregiver of the children.
- Whether the court is awarding spousal support.
- The division and distribution of assets as specified in a valid prenuptial agreement or postnuptial agreement.
The court has numerous options available to it in deciding the disposition of the family home in the final divorce decree, such as:
- Sale of the House:
The home would be sold, any mortgage paid off and the remaining proceeds, if any, fairly divided between the spouses.
- One Spouse Buys Out the Other:
Not unlike the situation of the dissolution of a business partnership, one spouse would buy the other’s ownership interest in the house and become sole owner.
- One Spouse Keeps the House in Exchange for Other Assets:
One spouse may take full ownership of the house by exchanging it with the other spouse for some other asset(s), such as another property, bank or brokerage accounts or a high-value collection.
- The Spouses Continue to Co-Own the House:
One spouse moves out while the custodial parent continues to reside in the home with the minor children. The spouses may decide to defer the sale of the home until some agreed-upon point in the future, such as when the youngest child reaches 18 years old or graduates from college.
I offer my clients nearly 24 years attorney experience in New York Divorce & Family Law, including issues of Equitable Division of Property and all physical and financial assets such as real estate, pensions, retirement and investment accounts and high-value collections, by negotiation, mediation or litigation, as necessary.
If you are considering divorce or have some other family law issue requiring legal representation, I look forward to speaking with you soon. You can reach the office by calling 914 821 5200 or filling out and submitting our online Contact Form.
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