Who Gets the House in a Georgia Divorce? Understanding Equitable Distribution

You decided to divorce. You want to move on with your future, but you cannot until the loose ends are tied up. Who gets the house in a Georgia divorce? That is just one of the factors you must consider throughout this process.

Meet with Attorney Sharon Jackson, LLC, if you are facing these critical decisions. Let us help you navigate your rights.

Georgia Is an Equitable Distribution State – Not Community Property

Georgia’s laws focus on equitable distribution of marital assets. That means that Georgia does not automatically split marital property 50/50. Instead, the court decides how to divide assets based on equity, or fairness. It is very important to understand that “equitable” and “equal” are not the same.

Who Gets the House: Is the House Marital Property or Separate Property in a Georgia Divorce?

One of the premises of an equitable distribution in a Georgia divorce is that each asset, like the home, is determined to be either marital property or separate property. It will be marital property in any situation where the home was bought during the marriage. It does not matter whose name is on the deed. If one person’s name is on the deed or mortgage and the property was purchased after marriage, both parties have a right to claim it.

If you purchased the home before the marriage, it remains separate property unless the spouse’s name is added to the deed after the marriage. In addition, it remains separate property when one party inherits the home from someone.

Comingling can be a factor. Comingling occurs when marital funds are used to pay the mortgage or make improvements on a home owned separately. For example, if you both pay on the mortgage for a home you purchased before marriage, both spouses may still have a claim to its value.

Factors Georgia Courts Consider When Awarding the Home

Various factors contribute to the judge's decision on ownership of the home. Some of those factors include:

• Length of the marriage
• Each spouse’s financial contributions to the home
• Non-financial contributions (childcare, homemaking, or other investments in the property )
• Earning capacity and future financial stability of each person
• Who will have primary custody of the children if those children live in the home
• Each party’s conduct related to the marriage (including financial misconduct)

All of these factors can play a role. With forensic accounting, it will be clear which factors apply to your situation.

Common Outcomes for the Marital Home

Considering Georgia divorce property division rules, one of several things can happen with the home:

• One spouse keeps it. In this situation, the spouse who buys out the other spouse provides benefits in some other way.
• The home is sold. In this situation, the court divides the sale proceeds between the two parties.
• Temporary possession is awarded to the custodial parent. That means that while decisions are being made, the family home remains in the parents' care.
• Deferred sale can occur. This means the sale of the home may be delayed, usually until the children reach adulthood.

These are some of the rules related to this case, but there are other avenues. Working with your attorney, you will consider a variety of avenues in your case.

How Child Custody Can Impact the House Decision

Judges typically put children before anyone else. That means that the judge is likely to prioritize the child’s stability. The custodial parent can typically remain in the home temporarily while decisions are made.

In these situations, mortgage responsibilities remain, and lenders can still take action if you default on the loan. Ownership interest in the home can also be a factor.

If you want to remain in your home but you cannot afford to do so, alert your attorney to this early on. Affordability in that home can affect the long-term ability of one spouse to keep the home.

Mortgage, Equity, and Debt Considerations

The couple or the court must also consider various factors related to the home. Some considerations will include:

• Mortgage: Who is on the home's mortgage? Who is on the deed to the home? These are two different elements that can affect who can own it.
• Equity: Equity is the value of a home outside of any mortgage. Equity is based on the home's current market value, not on the value of the mortgage. Equity is typically divided equitably.
• Refinancing: If one party plans to remain in the home after the divorce, the other party will likely need to refinance the current mortgage to buy out the other spouse. If one spouse cannot afford the mortgage on their own, it makes owning the home more challenging.

Remember that there are risks to staying on a mortgage after a divorce. If you choose to allow your spouse to pay the mortgage while you live in the home, but they default, you could still be liable.

Can You Negotiate Who Gets the House?

Through mediation and settlement agreements, decisions can be made. This can include various creative solutions outside of court. Sometimes negotiated outcomes you both agree to may be better than what the judge orders.

Why Legal Guidance Matters in High-Value or Emotional Disputes

Real estate is often the largest marital asset, making it critical to get it right. Mistakes can affect the long-term financial security of both parties. A Georgia family lawyer who understands property division can minimize such risks.

Contact Our Lawrenceville Georgia Family Law Team for Immediate Help

Dividing a marital home in Georgia is not simplistic. With the help of Attorney Sharon Jackson, LLC, you will gain a better understanding of your rights. Call us now at 678-672-2679 to schedule a consultation.

FAQs About Equitable Division in a Georgia Divorce

What is a delayed sale of a home in a divorce?

In some cases, spouses can agree to delay the sale of the home until children enter adulthood. This only works when there are clear expectations of the costs associated with the home.

Can I keep my home in a divorce if I don’t have a job?

If the home is under a mortgage, you will need to show you can afford the loan payments.

What happens if my spouse stops paying on our mortgage during the divorce?

This could influence the court's decisions regarding the division of assets. Work with a lawyer for clarity.