Marital vs. Separate Property
In New York, the first step in dividing the marital home is determining whether it is marital property, separate property, or a combination. Property acquired during the marriage is generally marital property. Property owned before the marriage, inherited by one spouse, or received as a gift to one spouse is generally separate property.
However, the lines can blur. If separate property was improved with marital funds, the increase in value may be subject to division. If both spouses' names are on the deed or mortgage, the analysis becomes more complex. A forensic accountant or appraiser may be needed to trace contributions and establish the marital vs. separate components.
Factors the Court Considers
When dividing the marital home, New York courts consider factors outlined in DRL §236(B)(5), including the income and property of each spouse, the duration of the marriage, the age and health of both parties, the need of a custodial parent to occupy the marital residence, the loss of inheritance and pension rights, and any wasteful dissipation of assets by either spouse.
In practice, the most influential factors are each spouse's financial ability to maintain housing independently, the needs of minor children, and the overall balance of the equitable distribution across all assets — not just the house.
Getting an Accurate Valuation
An accurate home valuation is essential for equitable distribution. Both spouses should agree on an appraiser, or each may hire their own. If the appraisals differ significantly, the court may appoint a neutral appraiser or average the two valuations.
Your real estate agent can provide a comparative market analysis as a starting point, but a licensed appraiser's opinion carries more weight in court. The appraisal should reflect the property's current condition and the local market as of the valuation date specified in the divorce proceedings.