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Who Gets to Keep the House in a Divorce?

Updated January 20, 2025.

Dividing assets during a divorce is never simple, and for many couples, the family home is one of the most significant assets—and often the most emotionally charged. Deciding who gets to keep the house in a divorce can be complicated and depends on various legal, financial, and personal factors. To learn more, read this blog and reach out to the knowledgeable Rochester family lawyers at Lacy Katzen LLP.

How Is Property Divided in a New York Divorce?

New York follows the principle of equitable distribution when dividing marital assets. Unlike community property states where assets are split 50/50, equitable distribution means the court divides property in a way it deems fair, though not necessarily equal.

The family home is usually classified as marital property if it was purchased during the marriage or if both spouses contributed to its upkeep. Even if only one spouse’s name is on the deed, the court may still consider it marital property if marital funds were used to pay for the home. Separate property—such as a house owned before marriage—can sometimes be excluded from division, but this depends on whether it remained entirely separate throughout the marriage.

Factors like each spouse’s financial contributions, the length of the marriage, and the economic circumstances of both parties are taken into account when dividing property. The court also considers non-financial contributions, such as one spouse’s role as a homemaker.

Can You Keep the House Without Going to Court for a Divorce?

Negotiation is often the best path for divorcing couples to determine who keeps the house. Mediation or collaborative divorce allows both parties to work together, outside of court, to reach an agreement. This approach can save time, money, and emotional stress.

If one spouse wants to keep the home, they may need to buy out the other spouse’s share. This requires calculating the home’s current value, subtracting any mortgage balance, and determining each spouse’s share of the equity. Refinancing the mortgage in one spouse’s name may also be necessary to release the other from financial liability.

However, not everyone can afford to keep the house on a single income, and for some, selling the property and dividing the proceeds might be the most practical solution.

What Happens When Kids Are Involved?

The presence of children can significantly influence the decision about who keeps the house. Courts often prioritize stability for children and may allow the custodial parent to remain in the family home. Keeping children in familiar surroundings can provide a sense of security during an otherwise turbulent time.

In these cases, the court might delay the sale of the house until the youngest child turns 18 or graduates from high school. This arrangement, often called a “deferred sale,” allows the custodial parent and children to stay in the home temporarily while the non-custodial parent retains a financial stake.

If you’re facing divorce and have questions about keeping your home, please don’t hesitate to contact the dedicated legal team here at Lacy Katzen LLP today.

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