We Practice Law for Your Peace of Mind

Divorce and Your House

Author: Steven Wiseman

April 22nd, 2013

For many divorcing persons one of their most important assets, oftentimes the most significant one, is their house. Significant not only financially, but frequently emotionally as well.

When I first meet with a client about a divorce, one of the questions I am almost always asked is what is going to happen with my house? As with many questions in divorce, the answer is complicated and depends on many factors.

One possibility is that a party may be granted what is known as exclusive use and occupancy for a specified period of time. This usually occurs when the parties have children under the age of 18. Courts now express a preference for allowing a custodial parent to remain in the marital residence until the youngest child becomes 18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale. In actual practice this occurs more frequently where the children are in their teens than when they are younger. At the conclusion of the specified period the house is usually sold.

The person having such exclusive occupancy is generally also entirely responsible for paying all of the carrying costs of the house, such as mortgage, taxes, and utilities, and for keeping it maintained. So while exclusive use may seem the way to go, you need to ask yourself if you will be able to afford it given your own income and what amount of child and spousal support you may receive.

If exclusive use and occupancy is not indicated or economically practical, frequently one spouse will want to buy out the other spouse’s interest in the house, either in exchange for other assets or for cash. This requires an agreement as to the value of the house or obtaining an appraisal. Affordability is again frequently a problem. Your spouse will justifiably want you to refinance the existing mortgage into your own name, which is not as easily done today as it was just a few years ago. And usually you have to refinance for more than the existing mortgage to raise the funds to pay your spouse his or her share of the home’s equity, so now you’ve taken on the existing expenses of the house and even more debt than there was before! Or if you’ve traded other assets to pay same, you may have left yourself financially vulnerable in other regards.

Last, the house can be sold and the proceeds divided. This is what a court will usually order if exclusive use is not awarded to one of the parties and they cannot otherwise agree on what should be done with the house. Even where parties agree without a court order to sell, any number of matters have to be discussed and agreed upon such as choice of realtor, sale price, payment of expenses pending sale, and how the proceeds are to be used, such as paying debt, and then divided.

I’ve touched on only a few of the issues and considerations involved in making a decision about what happens to a house in a divorce. The experienced family law attorneys at HoganWillig can provide you with informed guidance as to both the applicable law and in assessing your financial outlook going forward in order to help you make the smartest and most beneficial decision.

Where do I reside? Am I a New Yorker?

Author: Kenneth Olena

November 26th, 2012

The issue of a person’s legal place of residence has significance in matrimonial proceedings and other legal matters affecting where you can sue or be sued or where you must pay taxes among others. Legal residence is primarily a function of intent. To put it simply, your place of residence is where you intend it to be. When an issue arises such as residence for legal purposes, there are various factors that courts or other governmental agencies look at to determine your place of residence. Included in these factors are: where do you vote; what jurisdiction issued your driver’s license; where are your bank accounts; where do you or your children attend school; where do you own property; how much time do you spend in one state or another; where is your investment advisor; your doctor; your dentist?

The above tests help determine if your actual residence matches your declared intention. In some situations in New York, a bright line test is used. In determining if you are a NY residence for income or estate tax purposes , the Dept. of Taxation and Finance looks at the above factors, but if you spend too much time in the state, these factors make no difference. The same holds true for New York City income taxes.

Duration of residence is also important. In New York, a minimum of one years residence is necessary before commencing an action for divorce. For active duty military and their families, the state of legal residence is their declared “home of record.” This can be the state from which the serving member entered the service, or any other state in which they were, for a time, stationed. The home of record remains their state of legal residence until they declare an intention to establish legal residence elsewhere. This is true even if they are absent fro the state of declared residence for months or even years.

Terminating a Marriage like the Stars

April 6th, 2012

With celebrity marriages getting shorter and shorter, especially with the news that Kim Kardashian and Kris Humphries were calling it quits after only 72 days of wedded bliss, clients often ask whether their “short” marriage can be annulled.

Even though it may seem as though a short marriage is the key to obtaining an annulment, since Britney Spears and her high school buddy obtained an annulment from their marriage after only a few hours, length really has nothing to do with it. In fact, annulments are quite difficult to obtain.

By definition, an annulment is a matrimonial action to declare a marriage as null or void. Some marriages are void at their inception; others are “voidable” and must be voided by a court judgment.

What You Need to Know About Divorce BEFORE Getting Married

Author: Steven Wiseman

March 16th, 2012

The last thing a couple about to be married should be worried about is that one day they may be getting divorced.  However, as Benjamin Franklin said, “An investment in knowledge pays the best interest.”  Although the overall rate of divorce in the United States is said to be declining (a notable exception, according to the National Center for Family & Marriage Research at Ohio’s Bowling Green State University, is divorce among people over the age of 50, 25% of whom are getting divorced now compared to 10% in 1990), it’s pretty safe to say that 1 out of 3 marriages ends in divorce.

At HoganWillig we receive calls every day from people who say they are considering divorce and want to know, “What are my rights?”  In many instances had they consulted with a knowledgeable family law attorney before getting married the answer to that question is often going to be considerably different (and probably a happier one) than if they hadn’t.

Marital Property: When does the clock stop?

Author: Kenneth Olena

February 20th, 2012

A frequently asked question in cases of divorce is; what has to be divided with my spouse? The general rule is that property acquired after the ceremony and before the filing of a summons is marital property. The general exceptions are property from an inheritance, a gift from someone other than your spouse, or the result of a personal injury recovery.

A common follow-up question concerns income or property that comes into a spouse’s possession after the filing of a divorce action, but before the matter is finalized. Examples of such

Should I Stay or Should I Go

December 16th, 2011

Countless divorce clients approach me with the same concern: If I move out of the house, will it be considered abandonment? The answer is no! “Abandonment” is one of the most misunderstood concepts in divorce lingo. In New York State, you must have a reason to get a divorce, called a “ground” for divorce. Abandonment is one of seven grounds on which you can commence a divorce action. In order to file for a divorce on the ground of Abandonment, you must show that your spouse abandoned you for a period of one year or more. Moving out of the marital residence after a divorce action is commenced is not considered abandonment. Even if you did abandon your spouse for a year, it merely provides your spouse with a reason to commence a divorce action. It does not in and of itself affect the outcome of the divorce action.

However, before you decide to move out there are other considerations you should discuss with your attorney.

When “Happily Ever After” Doesn’t Last Forever…

Author: Hogan Willig

February 4th, 2011

Divorce has been depicted in Hollywood, both by films and by the celebrities featured in them, as endless wars between spouses. This portrayal represents how divorce proceedings can drain both individuals financially, damage relationships and cause emotional trauma for children stuck in the middle. Recently though, couples have found an alternative with the help of marital mediation.

Kindle to the Fire
Couples look to part ways for several reasons, but not all reasons are as emotionally fired up as infidelity. Perhaps the main issue is losing a job, debt problems, or unequal contribution to household income or raising children. Lack of communication can bring these problems to a point where many say, “I just can’t do this anymore.”


We Practice Law for Your Peace of Mind