A spouse who isn't on a real estate deed is often entitled to part of the property in a Georgia divorce. Even though only one spouse is the owner on the deed, both spouses have a legal right to the real estate under the state's marital property and property division laws.
Marital and Separate Property
In Georgia, marital property is usually any property the couple received while married, and this includes any real estate owned by either spouse. Even if only one spouse is on a property deed, the real estate is still included in the property division during the divorce. If the court determines that real estate owned by one spouse is actually separate property and not marital property, the real estate isn't part of the property division; it belongs solely to the one spouse. Separate property includes property a spouse received before marrying or property he inherited or received as a gift.
Equitable Distribution Rules
Georgia is an equitable property distribution state. If a judge divides marital property in a divorce because the couple can't agree, he must follow equitable distribution rules. Equitable distribution gives each spouse a fair share. While each spouse may receive half the marital property, the court may find that one spouse is entitled to more property than the other spouse. For example, the spouse who earns less may receive more of the marital property to make up for the loss of the other spouse's income.
Each spouse gets a percentage of the marital property and receives assets and property that add up to their percentages in value. For example, if a divorcing couple has marital property totaling $100,000, including a $50,000 house, each spouse is awarded 50 percent of the property by the judge. One spouse may get the house, while the other spouse receives the rest of the marital property. However, if neither spouse wants the house, the couple may sell the house and include the money from the sale in the property division instead.
Property that was originally separate may become martial property during the marriage. For example, if a husband inherits a house from his mother and is the only receiver on the deed, the house is the husband's separate property if he divorces. But if he filed another deed to put his wife's name on the house, the house becomes martial property. If a divorcing couple live in a home that is marital property, one spouse usually can't force the other spouse to leave, even if only one spouse is on the deed. However, if the home is the separate property of one spouse and the couple doesn't have children, the spouse who owns the home may ask the other spouse to move.
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