One of the most significant decisions in a New York divorce is what happens with the couple’s marital home. In most cases, a couple’s most valuable asset is their home. Aside from the financial value, there are often other considerations such as the emotional value a house has to one or both parties. In most cases, the couple can work out which party stays in the marital home and what offsets are appropriate. However, if that is the parties are not able to agree, then a judge will determine what happens with the marital home.
Usually, on my Long Island and surrounding area cases, I find that the Judge’s position is that if an agreement about the house is not made, the court will order the house sold and the proceeds divided. Given both the financial and emotional value of a home, though, some might prefer not to sell the house unless the parties desire to do so. However, there are circumstances in which a New York divorce judge will force the sale of the marital home. Particularly when the finances would not allow one spouse to remain in the home, a sale of the home is usually the case.
In New York divorce cases, one of the judge’s most important roles is to preserve the value of the couple’s assets. Indeed, under New York law, a judge is given broad discretion to act regarding the determination of title to the property. Likewise, when discussing equitable distribution, if the court believes either of the parties is wastefully dissipating the couple’s assets, the court may make appropriate rulings. Thus, if retaining ownership of the marital home will result in the dissipation of the couple’s assets, the court can order the home be sold. For example, if the parties are not able to afford the mortgage payment for the marital home because the primary breadwinner in the family lost her job, the court may intervene and order that the home be sold rather than go through the foreclosure process. This is even the case if one of the spouses objects to the sale of the home.
Continue reading ›