Selling a House or Building During a Divorce in Brooklyn

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Where Your Divorce Stands Changes What You Can Do

In New York, divorces are handled in State Supreme Court; a Brooklyn couple usually files in Kings County. Since 2010 New York has allowed no-fault divorce when the relationship has broken down irretrievably for at least six months. The rules about selling the house depend on the stage.

• Before anyone files. Owners on title can sell together. A spouse who sells or mortgages marital property unilaterally right before filing can still face consequences in the eventual distribution.
• After filing. The automatic orders apply, so a sale needs both spouses’ written consent or a court order.
• After a settlement agreement. The agreement controls: who sells, at what price, who picks the broker or buyer, who pays carrying costs, and how proceeds are split.
• After the judgment. The judgment of divorce, which typically incorporates the settlement, controls. If the house was not dealt with, former spouses usually hold it as tenants in common.

Whatever the stage, have your matrimonial attorney involved before you sign a listing agreement or a purchase contract. A buyer who knows the situation and works through both attorneys avoids the most common problems.

The Law

Marital vs. Separate Property in New York

Under Domestic Relations Law 236(B), the court divides marital property equitably and leaves separate property with its owner. Labels matter less than the history of how the property was bought and paid for.

• Marital property generally includes everything acquired by either spouse during the marriage, before the divorce action starts, however title is held.
• Separate property generally includes property owned before the marriage, inheritances, gifts from someone other than the spouse, and certain compensation for personal injuries.
• Appreciation. An increase in the value of separate property can be partly marital when it results from the other spouse’s contributions or efforts, for example years of renovation work and management of an inherited brownstone.
• Commingling. Separate property can lose that character if it is retitled jointly or mixed with marital funds, such as refinancing a premarital house and putting both names on the deed.

These questions turn on facts and documents: the closing statement from the purchase, bank records showing where the down payment came from, renovation receipts and mortgage history. They decide each spouse’s share of the proceeds, not whether the property can be sold. If the property was inherited during the marriage, see our inherited property guide for the estate side.

Automatic Orders

What the Automatic Orders Mean for a Sale

When a New York divorce is filed, a set of automatic orders takes effect, binding the spouse who files immediately and the other spouse once served. Among other things, neither spouse may sell, transfer, encumber, conceal or dispose of property held individually or jointly, including real estate, without the other’s written consent or a court order, except in the usual course of business, for customary household expenses or for reasonable attorney’s fees.

• No new mortgages or home equity draws against the marital residence without consent.
• Insurance stays in place, including homeowner’s coverage on the property.
• A written stipulation signed by both spouses, often so-ordered by the court, is the usual way to authorize a sale and set the terms.
• A motion asks the court to authorize a sale over one spouse’s objection, typically where carrying costs, vacancy or deterioration are eroding value.

The stipulation should say who signs, the minimum price or how offers are approved, who manages tenants and showings, how carrying costs are paid until closing, and where the proceeds go. Title companies will want to see it.

Title & Occupancy

Deeds, Notices of Pendency and Who Stays in the House

How Married Couples Hold Title

Married couples in New York who buy together usually take title as tenants by the entirety, a form of ownership only spouses can hold. A final divorce generally converts it into a tenancy in common, where each former spouse owns a share that can be sold or forced to sale through a partition action under RPAPL Article 9. For co-owner disputes generally, see our partnership dispute guide.

Notice of Pendency

Where a divorce asks the court to distribute a specific property, a spouse’s attorney may be able to file a notice of pendency with the County Clerk. It shows up in every title search and in practice prevents a sale without the other spouse’s cooperation.

Exclusive Occupancy

Courts can grant one spouse exclusive occupancy of the marital residence while the case is pending, typically for the safety of a spouse or children. That spouse controls access, which affects showings, inspections and the timing of any sale. A buyer willing to work around an occupied home, with one walkthrough, reduces the friction.

Money

The Mortgage, Carrying Costs and Splitting the Proceeds

A divorce does not change who owes the mortgage. If both spouses signed the note, the lender can pursue both until it is paid, whatever the settlement says. That is why buyouts usually require the staying spouse to refinance, and why deferred sales keep both former spouses tied to the property.

• Carrying costs. Mortgage, taxes, water, insurance and repairs continue during the case. Agree in writing who pays and whether payments are credited at the split.
• Rental income. In a two-family or brownstone with a rental unit, decide who collects rent and pays building expenses until closing. Tenants’ leases continue after a sale.
• Escrow. Net proceeds are commonly held by one attorney in escrow until the parties agree or the court rules.
• Credits. Settlements often credit a spouse for separate-property contributions, post-filing mortgage payments or paying for repairs before the sale.

If the mortgage is in default, act quickly; see our pre-foreclosure guide. A foreclosure during a divorce usually destroys equity both spouses need.

Taxes

Tax Issues When a Divorcing Couple Sells

• Transfers between spouses. Under Internal Revenue Code Section 1041, a transfer from one spouse to the other, or to a former spouse incident to the divorce, is generally not a taxable sale. The receiving spouse keeps the original basis, so the tax on decades of Brooklyn appreciation is deferred, not eliminated.
• Home sale exclusion. Section 121 can exclude part or all of the gain on a principal residence if ownership and use tests are met. A spouse who moved out under a divorce or separation instrument can, in some cases, count the other spouse’s continued use, which helps with deferred sales.
• Rental units. In a two- or three-family where you lived in one unit, the rental portion is treated differently and depreciation may be recaptured.
• Investment buildings. A multifamily or mixed-use building sold to a third party produces capital gain and depreciation recapture; some owners consider a 1031 exchange, which has strict rules.
• Transfer taxes. New York State and City transfer taxes generally apply to a sale to a third party, with special treatment for some transfers between spouses. A spouse who now lives outside New York may owe estimated state income tax at closing.

Who bears the tax on a sale is a negotiating point in the settlement, so run the numbers with a CPA before agreeing to a split based on the gross price.

Contract & Disclosure

Contract, Disclosure and Agreeing on a Price

Most divorce sales stall on price, not law. One spouse wants to list high and wait; the other wants out. Settle the process before the property goes to market.

• Agree on valuation. A jointly chosen appraiser, or one appraisal each, gives you a range to work from.
• Set a decision rule. For example, accept any offer within an agreed range, or let a neutral decide if you deadlock.
• Disclosure. For one- to four-family homes, New York’s Property Condition Disclosure Act, as amended effective March 20, 2024, generally requires sellers to deliver the disclosure statement before the buyer signs a contract; the old option of giving a credit instead was eliminated. Some transfers, including certain court-ordered sales, are exempt.
• Both spouses sign. Plan for both to sign the contract and deed, or for one to sign under a power of attorney or court order.

The fewer moving parts, the fewer chances for one spouse to back out. A single all-cash offer with no financing contingency and no repair negotiation is often the version both sides can accept.

Your Options

List With a Broker or Sell Direct

List With a Broker

If the house is in good condition, both spouses cooperate, and there is time, listing on the open market will usually produce the highest price. A Park Slope limestone or a renovated Bedford-Stuyvesant brownstone can draw strong retail interest. Expect showings, open houses and a contract with financing and inspection contingencies.

Sell Direct to Red Hook Development

Selling to us makes sense when the spouses cannot coordinate showings, the property needs work, tenants are in place, carrying costs are draining the estate, or a court or settlement deadline is approaching. Our price reflects buying as-is for cash with no financing contingency, so it may be below what a well-presented listing could bring. In exchange you get one written offer to both spouses and their attorneys, a single walkthrough, no repairs and a closing date that fits the case. We also buy rent-stabilized buildings and 421-a buildings.

How It Works

How We Buy From Divorcing Owners

• Either spouse or attorney can reach out. We respond within one business day and keep it confidential.
• One walkthrough, scheduled around whoever is living there.
• One written offer to both spouses and both attorneys.
• Attorney-run contract that follows your stipulation, settlement or court order.
• Close on your schedule, with proceeds paid as the attorneys direct.

We buy across the borough, including Brownstone Brooklyn, Central Brooklyn and South Brooklyn. Start with the quick form above, our detailed property form, or see everything we buy.

This guide is general information about New York law as of October 2026, not legal or tax advice. Divorce outcomes depend on your facts and agreements; work with a New York matrimonial attorney and a CPA before deciding.