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The Matrimonial StrategistFeaturesContractsFamily LawGeneral Counsel and In House CounselLand Use and PlanningLitigation

Avoiding Tax Pitfalls in New York Real Property Transfers in Separation and Divorce

By Eli Uncyk and Jeffrey S. Kofsky

It has been a contentious few years, but you have reached the day when your divorcing New York clients will finally sign a settlement agreement resolving all issues between them. The parties, like so many others, have a variety of assets, ranging from bank accounts and pensions to personal property, all of which are being transferred to one party or the other. One spouse is gaining sole ownership of the marital residence. While the agreement is silent as to the precise value of each asset, the agreement has been carefully calibrated so that the parties will receive what they each perceive to be 50% of the marital estate. In order to make the break between them as clean as possible, and reduce the cash-strapped parties' future legal expenses, you have also arranged for the transfer of the marital residence to occur simultaneously with the signing of the agreement.

After a few tense moments when the parties spar over who gets the children on Leap Day and whether the library's lost-book fine for “Divorce for Dummies” that both sides deny borrowing is a marital debt that should be evenly divided, the agreement has been signed. As the parties turn toward executing the deed transferring the martial residence, someone at the table asks whether there are any taxes due on this transfer to New York State and/or New York City.Letting out a nervous laugh, you and your adversary quickly pull out your smartphones, do a quick search and realize that several thousand dollars are due in transfer taxes, an expense that no one accounted for and that neither party wants to pay. As set forth below, fortunately there may be ways to possibly minimize this burden.

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