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What is your home worth to you? Most people probably couldn’t answer with a simple dollar value. Instead, a home, whether it be a house, co-op, condo or apartment, often signifies a substantial investment of finances, time, and effort–not to mention emotional attachment. When couples end their marriage, deciding what to do with a shared home is about much more than just a piece of property.

As a divorce mediator, I understand the emotional tension a home creates for divorcing couples. I also understand that both partners want to have a say in the fate of this important asset. That’s why I work with families to create a plan that honors all that a home means to both partners.

Is your home marital property or not?

When creating this plan, the first factor we consider is when the home was acquired. According to New York law, homes can be considered either separate property or marital property. Simply stated, a house is considered separate property if it was acquired before the marriage, and marital property if it was acquired during the marriage. Property acquired during the marriage is considered marital property even if the title to the item, such as a home, is held in one name.

If the home is marital property, then it is considered an asset for both spouses. That means each partner is entitled to part ownership. Based on these facts, there are four typical options I invite my clients to consider:

  1. Sell the house now, and divide the proceeds equally.
  2. Sell the house at a future date, typically contingent on a child’s age.
  3. One partner buys the other out, usually in order to continue residing in the home.
  4. One spouse may keep the home outright by trading it for another comparable asset.

The option that works best for each couple depends on their family’s unique needs, desires, and circumstances. For example, both partners may agree to sell their home in the future so that their youngest child can stay in a great school district until graduation. Or both partners may agree to sell the house now in order to move forward financially and practically after the divorce.

One of the strongest advantages of divorce mediation is that in a discussion-based space, we have the time and ability to work through all these options civilly. For example, one situation I commonly see in mediation is that one spouse does not want to sell the house due to emotional attachment. Perhaps it’s where their child took their first steps, or where family and friends gathered for the big holidays. In these circumstances, we gently work through the root of that attachment in order to figure out what is the best option for their current season of life as they move forward.

What if one spouse has already moved out?

One misconception I commonly hear is that moving out of the home means that the spouse has relinquished their rights to the property. Not true! If the house is marital property, both partners are still entitled to the asset, even if one partner is not currently residing at the property. However, there is one important caveat if children are involved. Moving out ahead of time when there are children still residing at the property may give one parent a better case to be primary custodian of that property. This is because the court usually decides in favor of the status quo to maintain a sense of normalcy for children.

The ability to work out tricky details like these is just one more reason why divorce mediation is the better alternative to litigation. In mediation, you can develop a parenting plan ahead of time, before moving out of the property, so everyone is on the same page.

Of course, this is simply an overview of some of the decisions a couple may choose to make about their home during a divorce. The bottom line is that making decisions about your home doesn’t have to be all or nothing, high-conflict process. When you choose divorce mediation we can discuss all the options and find the right one for you and your spouse.

Do you need help with the division of assets in your divorce? Call 631-327-0231 today for a free consultation.

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