When spouses are unable to agree on the division of property in a divorce, questions arise as to who will get the home after divorce. When the married couple resides in a home that one spouse purchased prior to the marriage and the home is in that spouse’s name only, it may be incorrectly assumed that the home must be separate, and not marital, property. The distinction of whether an asset such as a home is separate or marital property is an important one since Georgia courts require marital property to be divided equitably.
HOW THE PROPERTY IS TITLED DOES NOT MATTER IN DETERMINING IF PROPERTY IS A MARITAL ASSET
The determination of whether a home is separate versus marital property is a case-specific analysis that depends upon several factors such as how the property was handled by the spouses and the circumstances of the marriage. Because property such as a home is titled in one spouse’s name does not mean that it is that spouse’s separate property. Also, the fact that a property was acquired prior to marriage does not in of itself mean that the property is a separate asset, considering it is possible that property can start off as a separate asset, but can later become marital property. For example, if the other spouse’s income is used to make payments on the mortgage or he/she makes improvements to the home, the property may be considered a marital asset. Spouses should be careful not to incorrectly assume that because their spouse did not make mortgage payments or improvements to the property, that it is a separate asset. Georgia courts have held that spouses who stay home to take care of the children contribute to the marital earnings since his/her role as a homemaker allows his/her spouse more time to devote to his/her career. Therefore, a spouse who is a homemaker could be found to have contributed to the household such that the marital residence purchased prior to the marriage by one spouse and titled only in that spouse’s name is considered marital property.
Determining whether an asset such as a home is separate or marital property can become very complex as it is a fact-specific determination with no bright-line rules. Therefore, spouses considering divorce are well-advised to speak with experienced counsel regarding any concerns about the division of property/assets after divorce. If you have questions, contact FLFAttorneys at (770) 485-6633.