A Factor You Haven’t Considered When Dividing Assets

During the divorce process, you will have to divide your marital property. This pertains to assets that were obtained during the marriage. Anything that has either been identified as separate property or was addressed in a prenuptial (or postnuptial) agreement will likely be excluded. It is common for couples to purchase homes together, and many people will probably assume that the house is marital property. Whether that is the case depends on who paid for what. Did one person make a substantial down payment on the home using funds they had before marriage? These are the types of questions your lawyer will resolve before they can ascertain how the house will be divided. 

Why You Need to Arrive at a Mutual Agreement 

New York is an equitable distribution state which does not automatically declare that all your assets will be distributed 50/50. Fairness takes priority over equality. If you cannot agree on what is separate and what is marital property, then the court will do so for you. There are thirteen different factors the court considers before deciding. Arriving at what is separate property can take time and effort. Even though you may have had money coming into the marriage, you could have deposited it into a shared account. That is what is referred to as commingling assets. 

You are involved in a contested divorce when you and your soon-to-be former spouse cannot agree on how to divide your assets. Because you will need the court’s involvement, this process could take upwards of nine months to a year. In some situations, it could take several years. 

The Element You Didn’t Consider

Here are common ways people divide a house during a divorce: 

  • They sell the home and split the profits equitably,
  • One person has agreed to be bought out of it
  • One person has asked for other assets in exchange for giving up ownership of the house

Regardless of how you approach it, you need to consider the following: While you and your former spouse wait to finalize your divorce, what is happening to the value of your home? Rising inflation and mortgage interest rates can negatively impact the value of your home. You will see pending sales and potential buyers decline when these factors are present. Lower inventory only leads to increased sales prices if there are enough buyers to create a situation where demand outweighs supply. When the economy faces a downturn, many buyers may wait to see where the market settles before investing in a home. 

You and your spouse may rely on the home sale to purchase new property. How much impact will the home’s value have on your original agreement? Will one person be willing to give up fewer assets in exchange for the home?

Get in Touch with a Family Law Attorney 
If you and your spouse are losing money on a home while you wait for a court date, you now have common ground. Use this as a reason to have a discussion. Talk about how you can resolve your issues so you can put your home on the market. Although this is a tense situation, you and your former spouse both stand to benefit from getting the most money out of your home. If you need professional legal counseling to assist and support you with your divorce, contact Andrea L. Gamalski, Attorney & Counselor at Law, to set up a free consultation.

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Andrea L. Gamalski Attorneys at Law

Andrea L. Gamalski understands how important it is to have a compassionate and empathetic family law attorney who fights hard for their clients in the courtroom–mainly because she’s been one of these clients herself.

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