Can I Get the Family Home in a Divorce? | Divorce & Family Legal Explains

Divorce involves difficult decisions, and few are more emotionally charged than what happens to the family home.

The house is often the most significant marital asset and a place filled with memories. Many divorcing individuals wonder if one spouse can retain the marital residence after the split.

In New York divorce cases, property division follows equitable distribution rules – meaning assets are divided fairly, but not necessarily equally. Divorce and Family Legal, LLC can advise on questions such as Can I get divorced if I can’t find my spouse?

Who Gets the House in a Divorce?

Property division of the family home can be complex. As mentioned before, New York is an equitable distribution state, which means that assets are divided based on fairness and a list of factors, rather than a strict 50/50 split as in community property states.

This does not necessarily equal a half-and-half division of every asset – the goal is an equitable (fair) outcome given the circumstances.

If the family home is considered marital property, both spouses have a financial interest in it and a share of its equity.

However, that spouse’s share may be distributed in various ways. Sometimes one partner will keep the house (with the other receiving cash or other marital assets of equal value), or the house might be sold and the proceeds divided.

When Is the Family Home Considered Marital Property?

A critical issue is whether the home is marital property or separate property.

Marital property generally includes assets acquired by either spouse during the marriage, while separate property includes assets one spouse owned before the marriage or received as an inheritance or gift.

In New York (and most states), the family home purchased during the marriage is generally marital property and subject to division.

This holds true even if only one spouse’s name is on the deed or mortgage, as long as marital funds (joint finances) were used to pay for the home or its expenses.

On the other hand, a house owned by one spouse before the marriage or acquired by gift/inheritance might be considered separate property and not divided in the divorce.

Equitable Distribution in New York Divorce Cases

New York’s equitable distribution law sets out that property should be divided fairly, not necessarily equally.

This means that the court considers a variety of factors to decide what each spouse should receive from the marital estate. Some of the property distribution factors that New York courts weigh include:

Financial Situation

The income, assets, and debts of each spouse at the time of divorce. This includes each spouse’s ability to maintain financial stability post-divorce.

Length of the Marriage

A long marriage might lead to a more complex division, especially if one partner sacrificed career opportunities or earnings for the family.

Financial Contributions

The family court also considers the spouse’s financial contributions. This consideration checks who paid most of the house expenses, and how the other spouse’s non-financial contributions supported the household.

Custodial Parent Needs

If the couple has minor children, the court will consider the need of the spouse who has custody of the children to live in the marital residence.

Other Factors in Deciding the Marital Home

When determining if one spouse can keep the family home, the court closely examines each spouse’s financial contributions to the property and to the marriage overall.

In this instance, one partner may have made most of the mortgage payments, but the other party might have paid household bills or made career sacrifices to support the family.

Each person's future needs and financial circumstances (earning capacity, housing alternatives, etc.) also play a role.

Custodial Parent, Child Custody, and the Family Home

When children are involved, the question “Can I get the family home in a divorce?” often ties into custody arrangements.

Courts often prioritize stability for children and recognize the emotional attachment kids may have to their home.

If one parent is the primary custodian, that responsibility gives them a strong argument for remaining in the marital home, at least until the children are grown.

As a result, if the custodial parent is allowed to stay in the home, the court may structure the arrangement in different ways.

In some cases, there is a deferred sale of the home – meaning the house will eventually be sold, but not until a triggering event like the youngest child turning 18 or finishing high school.

Emotional Attachment to the Marital Home

The family home isn’t just a financial asset; it often carries deep sentimental value.

Couples build their lives in a home, and children may have lifelong memories there. This emotional attachment to the marital home can make decisions about it especially tough.

Emotions can also impact negotiations: one spouse may trade other assets or concede on issues just to keep the house.

Mortgage Obligations and Financial Realities of Keeping the Home

Maintaining a house on one income can be challenging. During the property division process, courts and contested divorce attorneys in Albany will consider each spouse’s ability to afford the home on their own.

This includes paying the mortgage obligations, covering property taxes, homeowners' insurance, and ongoing maintenance costs (such as repairs and utilities).

If keeping the home would leave the person house poor (asset-rich but cash-flow poor), the court might lean towards a sale or an arrangement where the more financially secure spouse keeps it.

The Importance of a Divorce Attorney in Property Division

Decisions about the family home have long-term consequences, both financially and emotionally.

This is why having an experienced divorce attorney is so important when dividing marital assets.

From a practical standpoint, a divorce attorney helps with the paperwork and negotiations required if one spouse is refinancing or doing a buyout. They are able to assist with questions like Can I get alimony in my divorce?

Perhaps just as importantly, an attorney provides objective guidance. As discussed, it’s easy for divorcing spouses to become emotionally invested in “winning” the house.

A good lawyer acts as a counselor, helping the client weigh whether keeping the home is truly in their best interest, given the financial realities.

Talk to a Divorce Attorney about Property Disputes in a Divorce

The family home can be the center of heated negotiations. Whether one spouse ends up with the house depends on marital property rules, equitable distribution factors, and practical viability.

If the home is clearly marital property, both spouses have claims to its value.

In some cases, one partner – often the custodial parent or the one with greater financial means – will keep the house, while the other spouse receives assets or payments to balance their spouse’s share.

However, in other cases, the home may be sold despite an emotional attachment, because that solution is fairest or financially necessary. Dividing assets, such as a home, can be daunting.

Still, with a realistic plan and the help of a seasoned attorney from the Divorce & Family Legal law firm, clients can protect their financial interests while also honoring what the family home means to them.