Division of Real Estate in a New York Divorce 

Buffalo attorney advises on handling marital realty 

In a New York divorce, the property that spouses acquire during the marriage generally is subject to equitable distribution. This process can be contentious, especially when it comes to real properties, which are often the couple’s most valuable assets. At the Law Offices of Randy S. Margulis in Buffalo, our attorneys make sure clients receive their fair share of real estate or fair compensation from sales. 

How is property divided in a New York divorce? 

The New York Domestic Relations Law calls for a divorce court to weigh multiple factors in the process of equitable distribution. This means dividing assets fairly, though not necessarily equally. The first step is deciding whether an asset is marital or separate in nature. Only marital property is divided. There is no division of separate property — namely, that which was owned by either spouse before marriage, gifted to or inherited by a spouse at any time, or protected by a valid prenuptial or postnuptial agreement. Sometimes there is a blurry line between separate and marital property, since an asset can be converted from one type to the other. For example, if a spouse moved into the other spouse’s home upon marriage and helped make mortgage payments or assisted with other expenses, the home could be considered marital property even if only one spouse’s name is on the title. 

Options for dividing real estate due to divorce 

There are several options for dividing marital real estate. A parcel can be sold and the proceeds divided between the spouses. Alternatively, one spouse can buy out the other’s net interest, either in cash or in a transfer of other assets. In a high asset divorce, the spouses may own multiple properties, such as residences, vacation homes and rental units. However, there may be reasons for deferring a sale, such as a soft real estate market, negative tax implications or a large mortgage loan balance that leaves little equity. The divorce settlement can provide for the property to be jointly owned, with both spouses sharing expenses, until a sale becomes propitious. 

Who gets the house in a New York divorce? 

The family home presents a special case. It may have sentimental value, especially if the children are being raised there. The divorce settlement can provide that one spouse — usually the one with primary child custody — can remain in the home for a period of time, such as until the children reach majority age or graduate from college. When the house is eventually sold, the ex-spouses can divide the net proceeds, which each receiving credit for their share of expenditures in the interim. 

Mortgage obligations when one spouse keeps the house 

If the family home remains jointly owned and one spouse continues to reside there, the non-resident spouse usually will have to share in paying for the mortgage, taxes and maintenance. The divorce settlement can provide for a lump sum or periodic payments. Either way, this ensures that the house retains its present value and continues to appreciate until eventually sold. 

Is birdnesting an option for couples divorcing in New York? 

Birdnesting is when children stay in the family home, which remains jointly owned, and the parents rotate in and out. The parents may share another property where each lives when the other is in the family home or, if their financial situations allow, they may each have their own separate homes. This is a very difficult arrangement to manage and should not be attempted without professional counseling. 

Contact a Buffalo lawyer for help with real estate division in divorce 

The Law Offices of Randy S. Margulis in Buffalo assists New York residents with division of marital property, including real estate, in divorce. To schedule a time to speak with a skilled attorney, call 716-886-9600 or contact us online.