Who Gets The House In A Divorce?

MLF Team

For many divorcing couples, their marital home is their most valuable property. This leads to a great number of people wondering, “Who gets the house in a divorce?” Like countless aspects of the law, there is not a simple answer to this question. However, a knowledgeable divorce lawyer from The Millard Law Firm may be able to review your particular situation and explain the rules that will apply. Consider contacting them at (678) 319-9500 to learn more.


How Marital Property Is Divided in Georgia

Like most states in the country, Georgia is an equitable distribution state, as opposed to a community property state. In community property states, marital property is divided 50-50. In equitable distribution states, property is divided fairly, but not necessarily equally, between the spouses.


The spouses are free to settle their divorce case with whatever terms they both agree to as long as they are not exceedingly unfair. If the spouses cannot reach an agreement on their own or through mediation, the court will have to decide how to divide the property under state laws.


What Is Marital Property?


Marital property is generally any property either spouse acquired during the marriage regardless of whose name is on the title, as explained in a Mercer Law Review article. Common examples of marital property include:


  • Real property
  • Vehicles
  • Jewelry
  • Furniture
  • Bank accounts
  • Investment accounts


What Is Separate Property?


Marital property is distinct from separate property. Common examples of separate property include items in any of the following categories:


  • Property either spouse owned before the marriage
  • Property obtained pursuant to a valid marital or prenuptial agreement
  • Property either spouse obtained with separate property
  • Property one spouse received as a gift or inheritance


Separate property stays with the original owner and is not subject to division during divorce.


How Equitable Distribution Is Determined


After determining which property is marital and therefore subject to equitable distribution, the court must determine how to divide it. The judge can award the house and any other marital property in whatever proportion they deem fair. The court can consider the following factors when deciding equitable distribution:


  • Each spouse’s separate property and financial status
  • Any alimony awards to either spouse
  • Each spouse’s future needs
  • Each spouse’s debts
  • Each spouse’s income and earning capacity
  • Any wrongful conduct by either spouse that resulted in waste or the devaluing of marital assets
  • The conduct of the spouses during the marriage


Who Is More Likely To Get the House in a Divorce?


No specific rule under Georgia law requires the house to go to either spouse during a divorce. Who gets the house in a divorce? That depends on the specific circumstances surrounding the case. If the house was separate property, as may be the case if one spouse owned it before the marriage or inherited it during the marriage, that owner will likely retain their interest in the property. This is because, according to Georgia Code § 19-3-9, the separate property of each spouse remains the separate property of that spouse and is exempt from the court-directed division of assets applied to marital property during a contested divorce. If the other spouse contributed to the separate property, such as making repairs on the property, they might be entitled to receive some compensation for those contributions.


The court can consider the relevant equitable distribution factors identified above and determine who should receive the house according to these factors. Alternatively, the court can consider which spouse will have primary custody of the children and award the house to that spouse because the court has an interest in providing a stable home for minor children. In some cases, the court may order the house to be sold because neither spouse is able to take on the financial burden of paying the mortgage on their own. The court has full discretion to determine which spouse should receive the house and other marital property after applying these equitable principles.


How Is the House Split in a Divorce?


Who gets the house in a divorce? This is a common question, but the answer is not straightforward. How the house will be split in a divorce in Georgia is based on the particular case. An experienced lawyer from The Millard Law Firm can explain what usually happens in these types of situations and what the likely outcome might be for your case.


One Spouse Is Awarded the House


If one spouse is willing and able to take on the financial burden of paying a still-outstanding mortgage, the court may order the house to be awarded to that spouse. In this case, the spouse who will become the sole owner of the property may have to refinance the property and pay off the other spouse for their share of the marital property. The divorcing spouses might also need to change the deed on the property to reflect new ownership.


Both Spouses Are Awarded the House


If one spouse is not able to take on the financial responsibility, but the spouses still want to keep the house, the court could award, or the parties could agree, for both of them to remain joint owners of the property. This arrangement can be helpful if the spouses wish to keep the property and practice “nesting,” in which the children remain in the home and the parents rotate when they live there.


Alternatively, the spouses might want to continue using the property as a rental income to help provide additional income. The divorce decree may indicate how this rental income is to be divided.


The House Is Ordered To Be Sold


If the couple cannot afford to keep the marital property, the court may order, or the parties may agree, to sell it. In this case, the property may be listed immediately and sold as soon as the spouses, or their realtor, can find a buyer. The spouses would then split any proceeds remaining after paying off any mortgages or liens. This could be an equal split of the proceeds or some other proportion ordered by the court.


Contact an Experienced Divorce Lawyer With Your Questions About Who Gets the House in a Divorce


When you hire an experienced divorce lawyer for help with your divorce case, they may be able to answer questions you have along the way, such as, “Who gets the house in a divorce?” A knowledgeable divorce lawyer from The Millard Law Firm may be able to review your particular situation, explain how the law works, and advise you of your options at each stage of your case. Consider contacting them at (678) 319-9500 to schedule a confidential consultation.