When couples face the emotionally challenging decision to end their marriage, one of the most common concerns is property division, particularly concerning the family home. For many, the home is not just a valuable asset but also a sentimental one. The question of “who gets the house in a divorce in Georgia?” is not always as straightforward as one might think. There are some key factors that need to be considered when it comes to property division in Georgia.
Equitable Distribution in Georgia
Georgia follows the principle of “equitable distribution.” This means that marital assets, including the family home, are divided fairly but not necessarily equally. It’s important to note that ‘equitable’ does not always mean ‘equal.’ Instead, the court considers various factors to decide a fair division. However, the ultimate decision lies on the judge’s assessment of what is fair in dividing assets. When a divorce in Georgia goes to court, the judge has the authority to distribute all assets, including property and debts.
Separate vs. Marital Property
Before determining who gets the house in a divorce, it’s crucial to categorize the property involved:
- Separate Property: Acquired before marriage or through inheritance/gifts to one spouse. This includes things like assets bought with separate funds in the marriage, gifts and personal injury settlements.
- Marital Property: Acquired during the marriage, regardless of whose name is on the title.
If the house was purchased during the marriage using marital funds, it is generally considered marital property. However, if one spouse owned the house before marriage, this can be complicated if it then becomes the marital home. Generally, if the growth in value is purely because of market dynamics, both the appreciation and the initial asset continue to be the individual’s separate property. However, if the property’s value increases due to contributions from the marriage, whether they’re financial or through efforts and labor, that can be considered marital property.
Factors Considered by the Court
The court will look at various factors when deciding the fate of the family home:
- Each spouse’s contribution to the purchase of the house
- Each spouse’s contribution to the maintenance of the house.
- The financial circumstances of each spouse.
- The custody arrangement if children are involved. Sometimes the custodial parent is awarded the home to maintain stability for the children.
- The intent of the parties. If there was a prenuptial or postnuptial agreement in place, it might dictate the distribution.
- Debts and liabilities of each spouse.
Options for Dividing the House in Divorce
There are several ways the house can be dealt with in a divorce in Georgia, however it may take external guidance from a Georgia family law attorney to determine the best situation for your family and your home.
- Sell the House: Sometimes the easiest solution is to sell the home and divide the proceeds equitably. This does not mean the proceeds will be split evenly, but fairly for the financial situation surrounding the property.
- One Spouse Buys Out the Other: If one spouse wishes to stay, they can buy out the other’s share, either through cash or by relinquishing claims to other marital assets like a car, boat or other property.
- Co-Ownership: Some ex-spouses decide to keep the property together, especially if children are in the picture. This is less common and requires a clear agreement to manage potential disputes.
How Do I Keep the House During a Divorce in Georgia
If you’re in the midst of a divorce in Georgia and you wish to retain ownership of the marital home, you should consider the following steps:
- Consult a Georgia Family Law Attorney: Before making any decisions, consult with an attorney who specializes in family law in Georgia and has vast experience in property division. They can provide guidance tailored to your specific situation and be your advocate through property division in your divorce.
- Determine the Home’s Value: If both spouses agree on the value, that’s great. If not, you might need to hire a professional real estate appraiser to determine its fair market value.
- Consider the Equity: Equity is the home’s value minus any outstanding mortgage or loans. Understanding the equity will help in negotiating who gets the house and how other assets or debts might be traded off.
- Negotiate with Your Spouse: If you want the house, you might need to offer other assets in exchange. This could be retirement accounts, other real estate, personal property, or assuming more marital debt.
- Buy Out Your Spouse: If you’re keeping the house, you might need to refinance the mortgage to remove your spouse’s name and secure the necessary funds to “buy out” their portion of the equity.
- Consider the Mortgage: Even if you get the house in the divorce, if both names are on the mortgage, lenders will still consider both parties responsible. Ensure that you can refinance or assume the mortgage on your own.
- Factor in Future Expenses: Remember that the house will have ongoing costs: maintenance, taxes, insurance, and mortgage payments. Be sure you can handle these costs on a single income.
- Update Deeds and Titles: If you are awarded the house, ensure that the deed is updated to reflect only your name. This might require filing a quitclaim deed.
Consult with an Experienced Georgia Family Law Attorney
The division of assets in a divorce, especially something as significant as a family home, can be intricate. It’s essential to work with knowledgeable professionals who understand the nuances of Georgia law.
If you’re going through a divorce or contemplating one and have questions about your property rights, the team at Vayman & Teitelbaum is here to guide you. Our seasoned Georgia family law attorneys have the experience and empathy to navigate these sensitive issues and can help you protect your assets. Contact us today!