Featuring real estate articles and information to help real estate buyers and sellers. The Nest features writings from Georges Benoliel and other real estate professionals. Georges is the Co-Founder of NestApple and has been working as an active real estate investor for over a decade.
How to file for divorce in NYC? When you first get married, you expect things to last forever. Unfortunately, all the expectations in the world can’t keep couples not meant to be together. Though getting married always is easy, getting divorced isn’t. This is especially true if you and your soon-to-be-ex (aka the STBX) bought a home together. Buying a home might not have been a bad idea, but buying a home with your ex might have been. If you’re like many people facing a divorce, you probably wonder what you should and shouldn’t do… We will discuss the divorce real estate consequences when filing for divorce in NYC.
Dividing real estate in a divorce can be easy or messy, depending on how easy the divorce is. The parties often have a general agreement about who keeps the house, and a matrimonial attorney needs to draft the agreement.
The best way to determine who gets the property is to agree on the matter between you, possibly with guidance from a mediator. This cuts down the financial loss of divorce litigation and also makes things more amicable for everyone involved.
New York’s policy is to learn towards equitable distribution of assets. This means that the court will determine what remains the separate property (bought before you married) and marital property (purchased after you married.) However, if both parties cannot agree to the division of assets, the court will step in.
In other words, only marital property gets divided when filing for divorce in NYC. If you bought the home before you married, you do not have to worry about credit it as part of a divorce…unless you offer it as a bargaining chip.
New York has a Domestic Relations Law that states that any property acquired during the marriage is marital property. This remains true regardless of whose name is on the deed or how long one party has lived in said property.
New York is not a common-law state. If you do not have a legal marriage contract, there are no legal grounds for a divorce. In other words, no marriage occurred, so you don’t have a reason to try to lay a claim on your ex’s real estate. We will continue to discuss Divorce real estate.
If you split your home during a divorce, then you usually will need to choose one of three options:
A judge may consider the following factors:
Indirect efforts could include joint efforts in building or maintaining the property, household services, being the primary caretaker of the children, contributing to the career of the other party, etc.
This is one of the more difficult questions to answer. It depends on the property as well as any agreements you may have about the marriage. If you bought two homes for residential use, chances are you might each end up with a home.
That’s a great question, and NYC is pretty good about this. Property inherited as a result of the death of a loved one is considered separate property. For example, if your wife’s mother died and left her the home in the will, the house is outside the divorce proceedings.
Most of the time, New York’s real estate laws are pretty easy to follow during a divorce. However, if you and your spouse owned a rental property or a business involving apartment rentals jointly, things get tricky. NYC laws suggest that you both retain control of the property until the court decides which assets are yours. You may need to create an additional LLC for this if you have to split the properties 50/50. In some cases, the court may divide large-scale properties as a batch, assuming one party offers other assets to the other party. The best way to determine where your rental properties will end up is to discuss the matter with a lawyer and the court. There are a lot of ways this can go.
If you have a tenant at one of your jointly-owned properties, New York City law will not allow you to evict the tenant. Court established their right to live there before filing for divorce in NYC, which means legal protections apply.
Technically, you both are still in charge of the rental properties acquired during the marriage. So, a tenant can make out the check to either one of you. Only when the property is officially switched over to one of the two parties that the checks are made to one person exclusively.
NYC’s tenant laws are some of the most protective in the nation, and unfortunately, that means you can’t just evict your spouse from home. This is true, even if they are not on the deed and do not have evidence of living there. The only time you might have a shot at an eviction is if your spouse poses a danger to yourself and others. The city’s domestic violence laws allow you to break a lease or evict offending people, provided you have proof.
In most cases, the best person to ask this question is a divorce lawyer. If you feel like you are in physical danger, the best thing you can do is get an Emergency Order of Protection against your spouse, update law enforcement, and listen to the advice your lawyer gives you. With that said, some spouses will willingly leave an area if they feel it’s in their best interest. It’s worth noting that leaving a property does not necessarily mean they waive rights to said property. If you want to leave your marital home, it’s essential to talk to your lawyer about what this could mean for you.
While you cannot ask your spouse to leave home when filing for divorce in NYC, most courts will hear your request after the divorce is a different story. If you make a solid case for eviction, the courts may add a stipulation that you or your spouse may leave. As soon as the courts determine that a marital home should not go to one party, one can do that. However, one party can do it if they deem that one partner will cause a severe problem of others’ quality of life.
Filing for divorce in NYCin real estate remains tricky. It all depends on how recent the prenup is, as well as how legally binding it is. Most of the time, courts will listen to the stipulations in a prenup—as long as there is no sunset clause. With that said, you do have the right to challenge a prenup in NYC’s divorce courts. If you signed the prenup under duress, coercion, fraud, or otherwise have reason to show that the prenup doesn’t hold water, you might change the divorce proceedings’ outcome. Should you successfully challenge it, the courts will decide what you want to take.
While it’s tempting to assume you can fight for your real estate yourself, the truth is that you probably shouldn’t. Most other questions should have a lawyer answering them, especially if you have a highly complex array of properties under your belt. The good news is that New York City courts are pretty fair and work hard to split assets down the middle. With the proper representation and the correct arguments, you shouldn’t have too much of a problem keeping your home.