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? Divorce cases are a plethora in New York State. 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 in New York isn’t. This is especially true if you and your soon-to-be ex (the STBX) bought a home together and lived in new york. Buying a home might not have been a bad idea, but buying a home with your ex might have been. Like many people facing a divorce, you probably wonder what you should and shouldn’t do. We will discuss the real estate consequences of filing for divorce in NYC.
Dividing real estate in a divorce can be easy or messy, depending on how accessible the divorce is. The parties often have a general agreement about who keeps the house. Therefore, a matrimonial or divorce attorney must draft the agreement and divorce papers.
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 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, the court will step in if both parties cannot agree to the division of assets.
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 it as part of a divorce unless you offer it as a bargaining chip.
New York’s Domestic Relations Law 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.
If you split your home (“community property”) 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 children’s primary caretaker, contributing to the career of the other party, etc.
This is one of the more difficult questions to answer. It depends on the property and any agreements you may have about the marriage. If you bought two homes for residential use, 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 easy to follow during a divorce. However, things get tricky if you and your spouse jointly own a rental property or a business involving apartment rentals. 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 if you 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.
New York City law will not allow you to evict the tenant if you have a tenant at one of your jointly-owned properties. 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 the check to either of you. Only when the property is officially switched over to one of the two parties are the checks 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.
You might only have a shot at an eviction if your spouse threatens you and others. The city’s domestic violence laws allow you to break a lease or evict offending people, provided you have proof.
Usually, a divorce lawyer is the best person to ask this question. If you feel in physical danger, you can get an Emergency Order of Protection against your spouse, update law enforcement, and listen to your lawyer’s advice. Some spouses willingly leave an area if they feel it’s in their best interest.
Leaving a property does not necessarily mean they waive its rights.
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.
Filing for divorce in NYC in real estate remains tricky, and it all depends on how recent the prenup is and 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. That said, you can 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. The courts will decide what you want to take if you successfully challenge it.
While it’s tempting to assume you can fight for your real estate yourself, the truth is that you probably shouldn’t. The good news is that New York courts are pretty fair and work hard to split assets down the middle.