Should I Put My Spouse’s Name on the Property Title?
An innocent, and often loving, act done by a husband or wife is to add their spouse’s name on the title to a home or other real estate property. Although it seems innocuous, in Georgia it may have some very real consequences in a future divorce filing.
The first thing to understand is that, in general, when determining what is marital or non-marital/pre-marital property, the title on a property doesn’t matter so much as the source of funding. Who paid into it?
But when it comes to the marital home and other real estate, the title can be incredibly important and one of the most valuable things in all of the marital estate.
If you put your spouse’s name on a real property that you owned prior to the marriage, be prepared for the court to call the entire value of the home a marital asset. You may lose any pre-marital interest you have had in the property.
As an example, suppose you bought a home ten years prior to marriage, paid off much of the mortgage, the house appreciated, and then you got married. At this point in time your spouse has no financial interest in the value of the home from the date you bought the home until the date of marriage. It is all yours!
Let’s say two years later you put the home in your and your spouse’s names jointly, adding the spouse to the title, and you do nothing else. Suddenly all the pre-marital value that you alone invested in and gained becomes 100% marital property should you divorce. Your spouse gains equal claim to ALL of the equity, including appreciation, on the property, even though they did nothing to earn it.
Also, not putting your spouse’s name on property can be significant. We just finished trying a case where our client, an immigrant from Bangladesh, bought a house while married. The house should be all marital assets, right? It was bought while married, using marital funds, and they paid the mortgage as a married couple for ten consecutive years. However…
Approximately 1.5 years prior to the spouses’ separation, our client, whose name was the only name on the title, transferred the title of the property to this mother. His mother paid off the mortgage on the home with an inheritance. The mortgage payoff was $95,000. The value of the home at the time had risen to $220,000.
During the divorce, the wife tried to void the transfer of the property to our client’s mother as a ‘fraudulent transaction.’ We defended the transaction under an applicable statute and the court ruled that there was no fraudulent transaction. So the result is that our client successfully transferred what was a 100% marital home into a 100% non-marital home to his mother, and it became a home he will get to live in and inherit. I would bet his mother will add him to the title again at some point.
Talk to an attorney who actually knows about this area of law. If your spouse is buying a marital home, and doesn’t put your name on the title, you may want to ask why. Hopefully, it never comes to separation or divorce, but if so, things such as whose name is titled on the home can make a huge difference.
Scott Shaw is founder and principal of Shaw Law Firm PC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm has offices in Dunwoody/Sandy Springs and serves the greater Metro Atlanta area, particularly the counties of Fulton, DeKalb, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today or call us at 770-594-8309.