Many Long Island couples considering divorce are concerned about what happens to the marital residence upon divorce so it is one of the first questions I am asked during their initial consultation with a Long Island Divorce Lawyer. The answer to this inquiry depends on particular circumstances, such as who purchased the house, who held title to the house, and when title was obtained. There are several possible outcomes for the use and disposition of the marital residence pending in a divorce.
Your Long Island Home May Be Sold As Part of Divorce Settlement
First, when the marital residence is the main asset of the marriage, it may be sold after the divorce so that its value can be distributed between the spouses. This distribution will be calculated in accordance with New York’s Equitable Distribution laws to provide the most just outcome for both parties.
Minor Children May Delay Sale of Long Island Residence After Divorce
In some cases, however, the sale of the home and the equitable distribution may be delayed in order to allow one party, usually the custodial parent, to remain in the home with minor children until the children are grown.
Long Island Marital Residence May Be Part of Property Settlement
In other cases, where a marriage has more assets, it may instead be appropriate for one party to be given ownership of the house as part of a property settlement.
If You Want to Keep It, Do Not Move Out of Your Long Island Home
If you are involved in a divorce and wish to remain in your home after your divorce, it is usually advisable from a practical perspective to remain in the home rather than move out temporarily, even if remaining with your spouse is causing you distress. Your lawyer may advise you in this manner simply because courts tend to “uphold the status quo” in divorce proceedings. In other words, if you are residing in the marital home during the divorce, it is more likely that a court will issue a decision that allows you to stay there than a decision that allows you to return there.
Abandoning Home Can Diminish Custody Opportunity
There is also a possibility, surely worth considering, that the spouse who leaves the home could possibly diminish his or her likelihood of obtaining residential custody of the children. Again, because courts prefer not to disrupt the status quo, especially when it involves the residence, school and lifestyle of the children, this may be worth considering.
Consult Your Long Island Divorce Lawyer if Abuse Is A Concern
Of course, if you are facing any abuse, domestic violence, or other safety concerns, it is important that you bring these concerns to the attention of your Long Island divorce lawyer. Generally speaking, in the absence of a finalized divorce decree or an order of protection, each spouse maintains the right to remain in the marital home. Once divorce proceedings have commenced, courts have the ability to grant exclusive possession of the marital home to one spouse, although this action by the court is used very sparingly.
Ask Your Long Island Divorce Lawyer About ‘Non-Abandonment Letters’
Sometimes in divorce cases, a spouse who decides to leave the marital residence will demand a “non-abandonment” letter which states that such leaving shall not be asserted by the spouse remaining in the home, as a ground for divorce. In addition, the letter may specify that leaving the marital home shall not be interpreted as a waiver of custodial or other rights to the children.
Long Island Divorce Does Not Always Split Home Sale 50/50
For most Nassau County and Suffolk County families, the most valuable asset in their divorce is the family home. In most cases, when the home was purchased during the marriage and is owned jointly in the names of both spouses, dividing this asset may seem simple – sell the home and split the proceeds. In many cases, this can be done in a rather straightforward way under New York’s equitable distribution laws. However, there are other instances where the law dictates a different result if one of the parties contributed their separate property to the purchase or improvement of the property during the marriage. In other words, even though legal title to the house is in both parties’ names and it is otherwise considered a marital asset eligible for equitable distribution, one of the parties to the divorce could end up with more, or even most, of the proceeds of the sale.
Domestic Relations Law Takes Precedence in Long Island Divorce
From the perspective of Property Law, this outcome is counterintuitive or even plain wrong. However, the Domestic Relations Law (DRL) seeks to preserve certain property rights when it comes to “separate property” owned by one spouse prior to the marriage or falling into certain other exceptions to marital property. The DRL provisions regarding equitable distribution consider whether property was held separately prior to marriage, and whether certain separate property can survive a marriage and return to its original owner after a divorce. For example, if a spouse had his own savings account prior to marriage, and used the money in his or her savings account as a substantial down payment on a house, the money used for a down payment may be considered his or her separate property that he or she is entitled to upon divorce, even if title to the house was held jointly between both spouses. However, this does not mean that the spouse is entitled to any appreciation on that initial investment. It is more likely that he or she will only be entitled to the exact amount of his or her contribution, plus his or her equitable share of the remaining value of the home.
Even When Title Is Held By Only One Spouse, House Value May Be Split
It is important to remember that, under the New York laws of equitable distribution used on Long Island, even when title to the marital residence is held in the name of one spouse only, it is possible that the value of the home will still be divided between both spouses. This will of course depend on when and how the house was purchased.
Have Marital Residence Questions? Contact a Long Island Divorce Lawyer for Answers
If you have questions or concerns about what will happen to your marital residence during or after your divorce, contact the experienced Long Island divorce lawyers at the Law Office of Robert E. Hornberger, Esq., P.C. at 631-923-1910 for a free consultation. Our caring and compassionate divorce attorneys can help to familiarize you with the process and the laws that apply to your case. Contact us today to schedule your free complimentary consultation.
Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced family law lawyer, Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.