Splitting Up: Can I Keep the House in a Divorce?
In the state of Georgia, estates are divided equitably in divorces. The house is often the largest marital asset in a divorce. It’s possible that a house can be all marital property, partially marital and partially nonmarital property, or all nonmarital property, depending on the circumstances. How it is categorized is extremely important to the outcome of the case. In the end, the answer is yes, you can keep the house in a divorce, but the value of the marital portion of the house will be equitably divided. Let’s take a closer look.
Source of Money
Money spent on the house is considered marital if the funds used came from a marital source, such as earnings from work while married.
Money spent on the house is considered nonmarital if the source of the funds used to purchase the home was owned before marriage, inherited, or gifted. It’s up to the party claiming a nonmarital or premarital interest to prove the interest. That’s usually done by creating a document trail for each piece of property.
Even if the property was fully purchased before marriage, a portion of it might still be marital if:
- You paid down principal on the mortgage during the marriage. That principal paydown would be considered marital property if you used wages or other marital property to pay it down
- Material improvements were made to the property and the increase in value may be considered marital
- The house was put into joint names, an unintended consequence that will waive away premarital value if not done correctly due to a specific statute in Georgia law.
Home Values
Homes appreciate, and sometimes the appreciation may be pretty substantial. The nonmarital/premarital portion of the home is entitled to its specific appreciation portion of the home, as is the marital amount. Provisions of Georgia law define how this is done and can be very important to do correctly. This is just one reason you need to work with a qualified lawyer to help you through every step of the process.
What Happens Next?
After determining what portion is marital, what portion is nonmarital, and how to allocate the appreciation, a spouse wanting to keep the home can pay out the other spouse’s financial, marital interest in the house in one of two ways.
- Giving other marital assets, such as retirement accounts or cash
- Refinancing the house, taking out equity, and paying out the equity to the other party as their marital share
In the end, one spouse can keep the house as long as they pay the other spouse their marital share. However, absent special circumstances, this should always be done by refinancing to remove the other spouse’s name from mortgage liability.
Never let your spouse keep a house if your name is still on the mortgage, even jointly. It’s not enough to use “best efforts” to refinance (courts simply are relunctant to enforce such agreements). You’ll either need to get it refinanced or sell the home. As long as the spouse who wants to stay in the home can refinance the mortgage to remove the other spouse’s name from liability for the mortgage, it can usually be worked out to allow one spouse to stay in the home.
Do you have questions about keeping your home after a divorce?
We are Georgia divorce and child custody attorneys. This is all we have done since 1995. We can help. If you need help or have any questions, we would be happy to speak with you via email, text, or phone. Check us out at www.shawlaw.com
Scott Shaw
Shaw Law Firm, PC
(770) 594-8309 (phone or text)
[email protected]