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Divorce Law

What Happens to the Marital Residence in a New York Divorce?

Exclusive Occupancy:
Courts frequently direct that a parent with custody of minor children shall be entitled to continue living in the parties’ former marital residence, both during and after the divorce proceeding. This is called exclusive occupancy, and it is intended to provide stability for the children of divorcing parents. This concept, which is well established in New York divorce law, was recently discussed by Putnam County Supreme Court Justice Paul Marx in his decision of September 15, 2016 in the case A.G. v. S.G. In his decision, Judge Marx wrote:

Plaintiff [mother] is awarded exclusive use and occupancy of the former marital residence through the end of the school year in which the mortgage resets. This will provide the children with continuity of residence until that time, a factor encouraged by case law while not impairing either parties' right to receive any net equity, since it appears, based on both of their testimony, that there is none. Further, the carrying costs of the home are likely comparable to the cost of a similar rental in this area.

In deciding whether or not to award exclusive use and occupancy to the custodial parent, matrimonial judges in New York usually compare the benefits for the parties’ children (for example, attending the same schools) versus the financial burden that exclusive occupancy would impose on the non-custodial parent. If there are no other substantial assets and there is substantial liquidity in the residence, courts are more likely to limit the period of exclusive occupancy or reject the request altogether.

Credit for Contribution of Separate Property:

When the parties have purchased a marital residence during the marriage, the home constitutes marital property that must be equitably distributed between the parties. In long-term marriages, it is likely that the equity will be divided equally between the parties. However, it is well settled under New York divorce law that each spouse is entitled to a credit for his or her contribution of their separate property toward the purchase of the home. To prove this, the party claiming the credit must be able to trace the contribution of his or her separate property to the purchase price.


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