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Who Gets the Family Home in a Georgia Divorce?

Dividing property during a divorce can be a painstaking process, especially when there is contention over each spouse’s share of ownership. There is perhaps no asset more difficult to divide than the family home. This is often the spouses’ largest single piece of property and usually means more to them than a parcel of valuable real estate. It may be the place where they have raised their children and might carry sentimental attachments as well. Yet, the house must somehow be divided. The question is how.

In a Georgia divorce, the family home is usually marital property that is subject to equitable division. That is the process a court uses to divide a couple’s assets fairly though not necessarily equally. To carry out equitable division of a home, the property may be sold at fair market value and the proceeds divided. Alternatively, one spouse may buy out the other’s ownership interest — which usually involves a mortgage refinancing — or may give up other property to compensate the other spouse.

A tough issue arises when both spouses assert an entitlement to keep the home and reject the notion of selling it. This may be because one spouse was the original owner or has put considerable capital and effort into improving or refurbishing the property. If there are children of the marriage, the spouse who is most involved in raising them might argue that continued residence in the home is in the children’s best interests.

A divorce court deciding on equitable division will look at various factors to determine who has a better claim to keeping the home. One factor is the source of funds. A spouse who contributed separate (nonmarital) funds to purchasing and/or improving the home is entitled to a proportionate share of the home’s equity value. Another factor is the title to the home, which the court may see as an indication of intent to keep the property separate. Still another factor is how the property was acquired. A house left to one spouse as an inheritance or gift is his or her own separate property.

Custody of the children is a factor that may influence possession rather than ownership of the home. A court may decide to let the primary custodial parent have exclusive use and possession of the home until all the couple’s children have reached majority age or have graduated college. This means postponing any sale of the home and division of the proceeds until that eventuality.

The Law Office of S. Mark Mitchell, LLC in Newnan, Georgia, has many years of experience protecting spouses’ property rights in divorce cases. My staff and I will make sure that your case is handled competently and efficiently. Contact me online or give my firm a call at 470-344-8550 for a free initial consultation.