Determining who gets the house in a divorce is challenging. When the spouses cannot agree, the court may force the sale of the marital home. If you are divorcing and cannot agree about dividing the marital property, turn to Aiello & DiFalco LLP.
We can help you navigate all aspects of the divorce process, determine whether you want to keep or sell your marital home, and plan for the tax consequences either way. We have comprehensive knowledge of New York’s rules of equitable division and will provide the advice you need to make informed decisions. Contact our office today to consult with our experienced divorce lawyer.
Dividing The Marital Home In A New York Divorce
Your marital home will be divided and possibly sold either by agreement with your spouse or as a result of a court order. In equitable distribution states, marital property must be divided fairly, but that does not mean an even 50-50 split. Of course, splitting up the marital home is not feasible, so the court considers several factors to determine a fair distribution.
An overarching factor is whether either spouse should keep the marital home so that a dependent child can continue living there. The court may prefer to award it to the spouse with primary child custody, making a forced sale less likely. The court must also determine a fair distribution if the divorce does not involve children.
In short, there are two possible outcomes:
- The spouse with primary child custody continues living in the house until the child graduates high school or turns 18, at which time the home will be sold, and the spouses will divide the proceeds.
- The court forces the sale, and the net proceeds, minus the outstanding mortgage balance, taxes, and other expenses, are distributed equitably.
When The Court Forces the Sale of a Marital Home
The court can force a sale of the home when divorcing spouses cannot agree on what to do with it. The court must first determine whether the house is marital property. If the couple acquired the house during the marriage, it is considered marital property subject to equitable distribution.
If one of the spouses acquired the house before the marriage, it will generally be considered separate property. However, if both parties made financial contributions to the home, either by paying the mortgage or making home improvements, the house will likely be deemed marital property.
In any event, the court must determine the house’s value before it is sold to fairly distribute the proceeds and the other marital property. Once all marital assets are identified and valued, the court may force the sale of the marital home if neither party can refinance it in their name.
Other Options For Selling The Marital Home
The spouses can avoid the forced sale of a marital home by agreeing to sell it. If they cannot agree, one or both parties can pursue a partition action. This is a legal proceeding in which the court determines how to dispose of real property when the spouses have different ideas about what to do with it. In short, a partition action is a way to force a sale of the marital home. For the court to consider a partition action, the divorce filing must include a request to partition the property.
Because a litigated divorce can be costly and time-consuming, it may be best for the spouses to agree to sell it and split the proceeds as part of the divorce settlement. At the same time, there are capital gains taxes to consider. If the spouses sell the house after the divorce, each party is only entitled to a $250,000 exemption on capital gains. If they sell before finalizing the divorce, they are entitled to a $500,000 exemption, which is a significant saving. Working with a divorce attorney who knows the ins and outs of equitable distribution can help you sell your marital home without court intervention.
Contact Our Experienced Divorce Attorney Today
A marital house is a substantial investment and a place where families make memories. Deciding whether or not to sell it poses financial and emotional challenges. While the court may force the sale of the marital home, you have other options. When you work with Aiello & DiFalco, we will help you make informed decisions and work to protect your property rights. You can depend on us to provide reliable advice, efficient service, and personal attention. Contact us today for a consultation.