Who Gets the House in a Divorce

Temporary Living Arrangements

A top question divorcing people have is, "Do i have to leave the house". Before you move into keeping or selling the house, you need to deal with the issue of "who gets the house DURING the divorce".

There is no law that says either spouse must leave the marital home. Spouses can continue to live in the same house, in separate bedrooms. Note that engaging in sexual relations can complicate your divorce case.

Many spouses prefer to separate for reasons of privacy, gross incompatibility, or fighting. Some seek to avoid the threat of violence or false accusations of violence. Separating creates immediate issues with income sharing and paying expenses. What should you do?

A Separate Maintenance Agreement is a formal process that sets the marriage-related terms of living apart. This is the Georgia legal action to establish legal separation.

One key topic is temporary living arrangements. This can specifically define who gets to live in the home, access rights of the other person, and costs for mortgage payments and maintenance.

Legal Considerations: When Courts Decide

Georgia Equitable Distribution Law: The first step is to determine how the legal system views your property.

Marital Property: Real property acquired during the marriage, like the home, is considered marital property, thus subject to equitable distribution. Regardless of the name on the title, it is effectively considered to be jointly owned.

Non-Marital Property: If a spouse owned the home before the marriage, or inherited it during the marriage, (and it wasn’t commingled/retitled in both names), it would normally be considered to be separate property. This means that the spouse owning the property keeps it, and it is not considered for division in the divorce.

Minor Children: If left up to the family court judge, the favor is typically given to the primary custodial parent. This facilitates a certain level of stability for the children (neighborhood, schools, friends, etc.). Obviously, the spouse must have the financial means to pay the mortgage, HOA fees, etc.

Divorce with Multiple Properties

If you have multiple homes, rental properties, or undeveloped land, all of the aforementioned would apply in your divorce. Having multiple properties can complicate the litigation; however, it can open a lot of options and flexibility to reach a fair and equitable outcome.

Keep or Sell the Home?

Divorce-related decisions are often emotionally driven. Regarding what to do with your home, make the right choice for the right reasons. The top positive-based decision is to consider what is in the best (reasonable) interests of minor children.

Continuing to live in the familiar home is healthy, but not if it means you’re struggling to get by and children suffer other losses.

Negative-based reasons for keeping the home generally come from a desire for power, control, or some ill-placed sense of victory. Don’t let greed or anger lead you into making a bad decision. Sometimes a fresh start is a healthy way to go.

Common Solutions for Real Estate

Sale of Home: This is common when neither spouse can afford to make the payments (mortgage, HOA, etc.) for the home. In this case, the home is sold, and the proceeds are split after paying off the mortgage, real estate agent fees, etc.

In cases with poor financial positions, the divorcing couple may walk away from the house and let the bank foreclose on the property.

If you choose to sell your home, you should work together to prepare your property to get the maximum sale price.

Buyout: In this scenario, the goal is to respect the financial position of both parties. The available options are directly affected by the circumstances of the divorcing couple. This involves paying for a professional appraisal of value (documented).

The exiting spouse will then be paid a portion of the actual equity and applicable appreciation. The retaining spouse may elect to refinance the house, and compensate the exiting spouse with a direct payment, or take less of other assets involved in the divorce.

Creative Solutions

If you and your spouse are on relatively good terms, some options can be mutually beneficial. Some options can provide long-term benefits to your children. Here are some ideas:

Create a Trust Place the home in a Trust as part of estate planning that will help your heirs.

Co-Ownership: In this scenario, selling the home immediately may not be an optimal route. The spouses may agree to share joint ownership (mortgage, HOA, maintenance expenses, etc.) and sell the home at a later date.

This may be a good option when market prices are down, the couple has a negative financial position, or to maintain stability for the children.

This option requires a good working relationship between the divorcing parties. There should be a formal agreement on property management, financial responsibilities, sharing maintenance costs, tax deductions and implications, future buyout options, and the end goal.

Summary and Key Takeaways

Divorce and separation generate issues about temporary living conditions, and discussions about who gets the house in a divorce. It is not a topic with clear-cut rules and set outcomes. Consult with a family law attorney to discuss your particular situation. Get answers and learn what to expect.

If you are facing a divorce or legal separation, you should contact a family law attorney. Our attorneys can advise you on your rights and how to maintain stability in this situation. Call our divorce attorneys at 678-880-9361 to arrange a consultation.