Who Gets to Keep the House in a Divorce?

In New York, it does not matter whose name is on the house.

The home where a married couple resides is referred to as -- you guessed it -- the "marital residence". It does not matter whose name is on the deed, or whether the house was owned by one party prior to the marriage. Both spouses have an equal right to live there. Both spouses have claims to any monetary value (i.e. equity), although it is not necessarily an equal split. 

In order to resolve the issue, there needs to be mutual agreement. Neither of you can sell the house without the other’s consent, nor can you change the locks to keep the other party out. (There are few exceptions to this rule, including contested custody matters and domestic violence cases.) 

In most cases, spouses live together in marital disharmony until they have a "meeting of the minds" and reach a formal buyout agreement. Or agree to sell the house. Or waive claims with other assets as part of the bargain. Sometimes, this means one party will move into another bedroom, or the basement, or the couch.

The housing market in the New York suburbs is rising. The decision regarding the marital residence is pivotal in almost all divorce negotiations. Even trickier are cases when there is not enough money to pay the bills and the mortgage or repairs fall behind.

So many decisions need to be made on a mutual basis. To sell or no? Make repairs or no? Which broker? What timeline?