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Rockland & Westchester County Divorce Lawyer > Blog > Divorce > Keeping Or Selling The Marital Home In Divorce: How Do I Decide?

Keeping Or Selling The Marital Home In Divorce: How Do I Decide?


The marital home is often the largest asset in every sense; not only financially, but in terms of family history and memories. As a result, there are often strong feelings that accompany it in the context of divorce.

However, whether or not to hold onto the family home is a decision that should be made with careful consideration and consultation with a family law attorney. Below, we discuss some of the factors to consider in making this decision:


The affordability of the property is one factor to consider: What was affordable for a couple is sometimes not sustainable for one individual. Sources to support the mortgage include the following:

  • Income
  • Spousal support
  • Child support (if applicable)
  • Liquid assets – whether it makes sense to keep the house in lieu of these assets that may appreciate at a rate faster than the home

These potential sources that would allow you to keep the home must be balanced with all home expenses and related upkeep, including property taxes and utilities.

Tax Implications & Following the Right Procedures

If you decide to keep the home on your own, the right procedure must also be followed to ensure that your ex-partner’s name is removed from the title; this often involves refinancing, which can be costly; especially if the new interest rate is higher than your current rate. Discussions may need to be had to a mortgage broker well before the divorce is finalized in order to ensure that there is a sound plan in place for the mortgage payments.

There are also tax implications involved in holding onto your home, as you are eligible to exclude a capital gain of $250,000 if filing single, which means that you will have to pay tax on any gain from the sale of the home later on that exceeds $250,000. If the home is sold before you are divorced, the combined exclusion is $500,000, which often eliminates the capital gains tax. Note that there are also requirements to receive the exclusion, such as owning the home for at least two out of the five years prior to the sale, where at least one person used it as their principal residence for that same amount of time (or two if claiming the combined exclusion).

As a result, some couples choose to remain on the home’s title post-divorce (so that they can obtain the $500,000 exclusion when the home sells). Still, this can bring about a number of complications later on; therefore, discussing it with your divorce attorney to find the right strategy makes the most sense.

There is also the mortgage interest tax deduction to consider, whereby the individual(s) who pays the mortgage and real estate taxes can deduct the tax interest on their return, regardless of whether they are currently living in the home.

Contact an Attorney for Help

There is no question that making important decisions about the family home can be affected by emotional factors, such as the presence of children. For some families, the children being able to remain in the home (and in their neighborhood) provides stability; while for others, the chance at a fresh start might be exciting. If you have any questions about divorce or marital assets, contact our Rockland County divorce attorneys at the Law Office of Robert S. Sunshine, P.C. to schedule a consultation today.

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