Who Gets The Apartment In A Divorce?

Last updated on September 18, 2023

Buying or building a home in New York is no easy feat. So, when you decide to divorce, the biggest question is who gets the house? Generally, New York law advocates for equitable sharing of marital property in a divorce. Meaning, everything acquired during your marriage, including your apartment, has to be split between you and your spouse.

However, the process of determining who gets to stay, who moves out, or who pays what can be challenging. This becomes even more difficult if there are children involved. An experienced New York divorce lawyer can help protect your interests in the apartment. The possible common actions include:

Sell The Apartment Before Separation

The most straightforward way is to sell the apartment and share the equity with your spouse. If neither of you wants to retain the house and you both want a fresh start, then selling the apartment is an ideal option.

However, if there are kids who are still under your care, this option might not work well with them, given that they’re already facing a significant crisis in their lives. Fortunately, there are better ways to navigate the story. When children are involved, the court will often decide the apartment to be retained by the custodial parent.

You’ll both retain the ownership of the house, but you can sell it later when the kids are all grown. While this is the optimum scenario for immediate emotional security, it has its own long-term challenges, especially in a rented apartment. You may also consider to:

Sell The Apartment While Separated

Although selling your apartment while separated isn’t an easy thing to do, it is possible. However, you may not always agree on how or who will sell the house. That is why it helps to hire a professional attorney to help you make critical decisions regarding the process.

At New York Family Law Group, we have helped many clients settle their divorce cases, especially when the sale of an apartment is involved—we can assist you too.

marital property division attorney in New York

Buy Your Spouse Out

Alternatively, you can consider the costs of keeping an apartment in New York. Ensure you understand everything involved in keeping the house, including maintenance, mortgage, repair, and possible taxes. Once you establish the cost per year, figure out what happens if you decide to sell it in the future.

If you are likely to gain financially, you may want to keep the house and sell it later. However, this makes sense only if both of you are comfortable with the decision. Otherwise, you’ll have to buy out your spouse, and if you’re unable to, then that may be a case for a judge to decide.

How Is Property Divided?

The court will look at the property that was acquired during the marriage in order to determine what property should be divided. This is called marital property. It is between you and your spouse.

Property that was given only to you during the marriage can be kept by you. These include inheritances, gifts, and personal injury awards. If you are unable to reach an agreement on who owned the property, you will have to prove it was yours.

Who Pays Rent During Divorce?

When going through a divorce, determining who is responsible for paying rent can be a crucial factor. In most situations, the spouse whose name is on the rental agreement is obligated to make the monthly payments. Failing to do so could lead to legal action from the property owner.

In cases where both spouses have their names on the lease, it’s essential to either pay your share or divide the bills equitably. If you and your partner have signed a joint lease, you are both responsible for ensuring the rent is paid according to the agreement.

However, if only one spouse has signed the lease, it’s their responsibility to make sure rent is paid until an amicable solution is reached. Not adhering to the lease terms could result in eviction, a particularly distressing outcome for families with children.

Navigating a divorce is never easy or enjoyable, but being reasonable and fair in your interactions with your soon-to-be ex-spouse can make the process more manageable. By promptly agreeing on how to divide bills and assets, you can start the healing process sooner.

If you need guidance on handling rent payments or other aspects of your divorce, don’t hesitate to consult a divorce lawyer who can help you navigate these challenging times. Call the New York Family Law Group today at (718) 293-1542 to schedule a consultation.

Factors that Influence Property Division

There are many factors that could affect which party receives more property than the others. These factors include who will have custody and who contributed more to the marriage overall. The state recognizes that homemaking is just as important as financial contributions to the home. Remember that the spouse who ends up caring for the children will likely be the one who keeps the house.

When it comes to property division, the courts don’t recognize fault. This exception is only if one spouse has used the marital financial resources in a destructive or wasteful manner. These things, such as spending the household income on romantic trips abroad, may invalidate any claim that one party has to cash division. Cash is usually split equally between the parties. These are just some of the things to think about when you’re considering divorce in New York. A professional divorce lawyer will be able to help you with your case and explain what your rights are.

Factors Affecting Property Division Explanation
Marital property Property acquired during the marriage that is subject to division.
Property given only to one spouse Inheritances, gifts, and personal injury awards received by one spouse during the marriage. Generally, these can be kept by the receiving spouse.
Contributions to the marriage Consideration of financial contributions and homemaking contributions to the marriage.
Custody of children The spouse who ends up caring for the children may have a higher chance of keeping the house.
Destructive or wasteful behavior If one spouse has used marital financial resources in a destructive or wasteful manner, it may affect property division.
Cash division Cash is usually split equally between the parties.

Equitable Distribution Law in New York Divorces

New York courts have used the equitable model of property distribution since 1980 when the Equitable Distribution Law was passed as an amendment to the Domestic Relations Law. In an equitable distribution, the property of the couple is divided according to what the court deems fair instead of splitting the assets 50/50. 

In determining the proportion of marital assets each spouse has the right to and which parts of that property, the court looks at many factors. These factors can include the assets and income of the partners, their age and health, the child custody and support arrangement (if children are involved), alimony, and the tax consequences of keeping marital assets such as the family home. 

These factors affect how much each partner invested in the marital assets of the couple and also how the parties will address their needs after a divorce. 

It is important to seek the legal advice of an experienced family law attorney when dealing with property distribution in New York. A skilled lawyer may be able to help you protect your rights and help you ensure that you are getting a favorable outcome.

Need a Family Lawyer in New York? Get in Touch Today

If you’re concerned about your apartment after divorce, you need a professional New York Family Lawyer to ensure fair property distribution. At New York Family Law Group, we understand the financial, emotional, and legal matters surrounding the assignment of your apartment. We will work with you side by side to protect what matters most to you. Please contact us online today or give us a call at (718)-293-1542 to consult with our legal professionals.



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