At The Louis Law Firm, PLLC, we understand that people have concerns regarding what will happen to the marital home when they go through a divorce. Some people want to protect the marital home and their spouse’s share of the home, but others want to keep living in the home and not be forced to sell it. Let The Louis Law Firm explain what could happen to your home should you go through a divorce.
New York is an equitable distribution State. The term “equitable distribution” does not necessarily mean equal. Generally, real estate property that is acquired during the marriage is split equally between the Husband and Wife. In a Brooklyn divorce, the issue of dividing real estate property can get complicated. For example, what happens when one party purchases real estate property while the parties are physically separated? Also, what if one party enters the marriage owning a real estate property and then adds his or her spouse’s name on the deed – the question then becomes will that property be considered marital or separate? And who will get it if you go through a divorce? At The Louis Law Firm we can help answer all these tough questions and develop a legal strategy regarding division of real estate property.
What happens to a home that was purchased before the marriage?
If a real estate property is purchased prior to the marriage, that property is generally considered separate property and is not subject to equitable distribution. However, separate real estate property purchased prior to the marriage can be classified as marital property in three ways: 1) if the non-titled spouse is added to the deed; 2) if the separate property is sold and another property is purchased during the marriage using the funds from the sale; or 3) when the separate property appreciates in value during the marriage.
Adding your spouse to the deed.
If you buy real estate prior to the marriage and then add your spouse’s name to the deed after the marriage, the courts will view the property as marital property that will be subject to equitable distribution. The question then becomes what happens to the down payment that you paid on the property prior to the marriage? A knowledgeable attorney can argue to the judge that the spouse that purchased the property and paid a down payment on it prior to the marriage should receive a credit of that down payment. Therefore, it is important to trace the down payment that was made prior to the marriage in order to claim this separate property credit. It could save you hundreds of thousands of dollars.
Selling the home that was purchased prior to the marriage and buying another property during the marriage.
Many of our clients entered the marriage owning a real estate property, but during the marriage they sold the property and bought another one. In this situation, New York State law presumes the real estate property that was purchased during the marriage is marital property subject to equitable distribution. However, the presumption of marital property can be rebutted by tracing the funds that was used to purchase the property.
In other words, in order to prove a separate property credit on the property purchased during the marriage, a knowledgeable attorney should work with the client to trace the funds used to purchase the marital property. However, if the person is unable to trace the money from the sale, the court will not award a separate property credit on the marital home. At The Louis Law Firm we work with our clients on these issues to try to save them thousands of dollars.
Is my spouse entitled to a share of a home that was purchased before the marriage but went up in value during the marriage?
Under New York law, an increase in value on a home that was purchased before the marriage is considered separate property. However, the non-titled spouse may be entitled to a share of the appreciation value if the increase in value happened because of the contributions or efforts of the non-titled spouse. The contributions to the increase in value of a home that was purchased before the marriage can be in the form of monetary and tangible contributions or intangible non-monetary contributions. For example, if the parties paid down the mortgage, or made major renovations on the property during the marriage that increased the value of the property, the non-titled spouse may have a claim for a share of the appreciation value.
If you are considering getting a divorce and concerned about what will happen to your home, call The Louis Law Firm today to schedule a free in depth strategy session. Call us at (347) 689-7562.