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Dealing with the Marital Residence in a Georgia Divorce

Dealing with the Marital Residence in a Georgia Divorce

In a divorce, there is always a marital home where the family and children have been living. It may be an expensive home that is owned by one or both spouses. Or it may be a modest home or simply an apartment where the parties live. The questions are usually: “does Dad have to move out” and “what will happen to the home – will it have to be sold”? Atlanta Marital Home Lawyer has experience dealing with residence matters in a Georgia divorce.

  1. “Does Dad have to move out?”. Not until ordered. Under Georgia law, both spouses have equal right to access the marital home until a judge has entered an order for exclusive possession. The can be in the form of a Temporary Protective Order if the wife has proper grounds to file for a protective order. (A TPO is a separate filing and action from the divorce.) Or it can be in the form of a temporary order from a motion for exclusive possession filed in a contested divorce. If the home environment has become hostile, and in particular if there has been any actual violence or any credible threat of violence, a TPO and/or a contested action for divorce with a motion for exclusive possession should be filed.

  2. “What will happen to the marital home?” It depends. If the parties can reach an agreement (for example a partial settlement concerning just the marital residence), this is usually best. If there is a final trial, the trial court could order the marital residence sold, or the judge could award the marital residence (and any equity) to one spouse (the custodial parent) and balance the remaining marital assets in an award to the other spouse. This will, of course, turn on the specific facts of the case, the family, the number of children, the respective proposed parenting plans, cumulative marital assets, alternate housing, etc.

How will the Marital Residence be Divided?

Assuming there is no pre or post nuptial agreement, from a legal perspective, you have to look at (1) possible investment of separate property in the marital residence and (2) the title. From a factual and practical perspective, you have to evaluate fair market value (via an appraisal for example) and assess equity, if any.

Regarding the possible investment of separate property, you have to look at whether any separate monies were invested in the home - renovations, upgrades, mortgage payments that were paid from separate property (not simply a separate account containing marital funds). The tracing of non-marital funds invested in a marital asset is governed by the Thomas case - see below legal headnote summary for Thomas v. Thomas*.

Also, you have to look at how the property is titled (see below legal headnote summary for Lerch v. Lerch**). In recent years, there have been a number of cases, starting with Lerch, that place emphasis on the title to real estate (and, incidentally, the ownership / account designation of financial accounts as well). If, for example, a home that was previously separate property has been deeded to both spouses, then the property has become marital, even if the spouse who signed the deed (at a closing for example) did not think carefully about this transfer.

All the above must be considered to determine a fair "equitable division" of the marital residence.

Practice Pointers

On a permanent basis, if there is a trial, as noted above, the judge could order the marital residence sold and the equity divided. Accordingly, if the parties desire to work out an arrangement to market the property on a time schedule to maximize value, this needs to be resolved between the parties prior to trial. On a temporary basis, if one of the spouses is ordered to move out, the earning spouse is usually ordered to pay and keep the mortgage and utilities current in lieu of or as part of temporary child support. When dealing with a temporary hearing, counsel should frame the exclusive possession argument in the context of the proposed parenting plan, what is in the best interest of the children.

Relevant Authority

* Under the “source of funds rule,” a spouse contributing nonmarital property to marital property is entitled to an interest in the marital property in the ratio of the nonmarital to the total cumulative nonmarital and marital investment. The spouse who contributed nonmarital funds is segmented from the marital unit that contributed marital funds and each, the separate spouse and the marital unit, is to receive a proportionate and fair return.

Thomas v. Thomas, 259 Ga. 73, 377 S.E.2d 666 (1989).

**The trial court was required to treat entire home as marital property during divorce proceeding as, during the parties' marriage, husband deeded the home to both wife and himself.

Lerch v. Lerch, 278 Ga. 885, 608 S.E.2d 223 (2005).

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