Several factors are taken into consideration when determining who may keep the family home in a New York divorce. Here are some of the most common considerations:

1. Financial Standing of Each Spouse:

One significant consideration is each spouse’s financial situation after the divorce. For example, if one spouse has significantly more financial resources and can easily manage the costs of maintaining the home, the court may consider awarding the house to them. Conversely, if one spouse has limited income or job prospects, the court may take this into account, potentially awarding the home to promote stability for this spouse.

2. Custody of Minor Children:

Child custody often plays a pivotal role in determining who gets the house. New York courts generally prioritize the well-being of children, so if one parent has primary custody of the children, they may have a better chance of being awarded the family home. This stability can be particularly beneficial to minimize disruption in the children’s lives. Courts may see keeping children in their familiar environment, such as their home, school district, and local community, as advantageous to their interests.

3. Length of the Marriage:

The duration of the marriage can also impact property division. Longer marriages are more likely to result in a nearly equal distribution of assets, and the court may lean toward giving both parties an equal share of marital property. For shorter marriages, especially when one spouse has contributed more significantly to purchasing or maintaining the property, the court may favor awarding the home to the contributing spouse.

4. Contributions to the Marital Property:

Another crucial factor in New York property division cases is each spouse’s contribution to the acquisition, maintenance, and improvement of the home. Contributions can be both financial, such as paying the mortgage, and non-financial, such as homemaking or raising children. The court acknowledges that each spouse contributes to the household in various ways, and contributions are not limited to monetary input.

For example, if one spouse was the primary breadwinner, while the other managed the home and took care of the children, both may be seen as having contributed to the marriage, even if one spouse did not directly contribute to the mortgage or property maintenance.

5. Any Existing Agreement Between the Spouses:

If you and your spouse signed a prenuptial or postnuptial agreement that specifies who would keep the house in the event of a divorce, the court generally will uphold that agreement unless there is a reason to challenge its validity. New York courts usually honor the terms of these agreements if they are legally sound and fair to both parties. If you used a DIY service to craft a separation agreement or prenuptial/postnuptial agreement, you are more likely to have made critical mistakes in your agreement that a court will not uphold during a divorce.

6. The Property’s Liquidity:

Real estate is often a significant asset, but it is not always the easiest to divide, as compared to “liquid” assets, such as bank accounts or retirement funds. The court considers whether the home can be sold and whether doing so would be beneficial for both parties. In some cases, the court may order the sale of the home and have the proceeds divided between the spouses.