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Litigation. Collaborative Law. Mediation.

Who Should Get the Family Home?


Many times people feel like their home is a comfort zone and it can be a source of stability for children. When divorcing, maintaining the status quo is usually in a child’s best interests. Divorce involves a lot of change and this type of change can be difficult and confusing for children. Keeping some things familiar helps to stabilize them, which is why courts often favor maintaining the same residence or school, if at all possible during and after a divorce.

Yet, property division is also a part of divorce. New York requires equitable distribution, and the family home is often a couple’s largest asset. One way couples can get around this aspect of property division is to allow the parent who spends the most time acting as a child’s custodian to remain in the house. Even with joint custody, children can spend a great deal of time in the home where they grew up. When their children reach 18 or 21 years old, then parents can sell the house and equitably divide the proceeds.

This option may be the most viable course of action anyway with today’s struggling housing market. The values of many homes are less than their mortgage prices and many people selling now-a-days are taking a loss. Waiting years to sell may allow the housing market to recover, which typically would (hopefully) result in a rise in housing prices.

When couples discover that it is more expensive to maintain two households than one, it can be stressful. Both parties must pay a mortgage or rent, pay separate utility bills, and file separate taxes, which is more costly. If selling the house resulted in a deficiency where the couple owed the mortgage company thousands of dollars or did not produce the equity that the parties were depending on, this can add to an already financially stressful situation.

The best way to plan for divorce is to discuss your circumstances with an experienced New York divorce lawyer. Skilled legal guidance can help you avoid costly mistakes.