What Happens to the House During a Divorce in Georgia?

If you are going through a divorce, the marital residence may be the most significant asset that you need to divide with your spouse, both in terms of material worth and emotional attachment. Determining what should be done with the marital residence is an important — and complicated — decision.

At The Siemon Law Firm, our divorce lawyers are here to guide you through the legal process and protect your financial interests. With offices in Alpharetta, Cumming and Atlanta, we advise men and women throughout Northern Georgia. Call 770-884-7067 today and schedule a consultation with one of our experienced and compassionate family law attorneys.

Can I Keep the Marital Residence?

All assets accumulated during your marriage are considered marital property and must be divided according to the law of equitable distribution. Equitable usually means 50-50, but a judge could determine that something other than a 50-50 split of home equity is fair.

There are several possible resolutions when a marital residence must be divided:

  • The house can be sold and the equity (or debt, if the mortgage was underwater) can be divided.
  • If one party was the cause of the breakup of your marriage, the judge may decide that it isn't fair to ask the innocent spouse to lose the marital residence.
  • If you have minor children, the judge may decide that it would be in the best interests of your children to continue to live in the marital residence with the parent who has primary physical custody. In this case, the judge may set a future date at which time the house would be sold and the equity divided.
  • You and your spouse could exchange assets of equal value: for example, giving up your right to a percentage of your spouse's 401(k) or other retirement plan funds in exchange for the marital residence.

If you and your spouse exchange assets, it's important to recognize that equity in a home is not worth as much as cash, especially in today's real estate market. There is no guarantee that your house will sell for a certain amount and it may remain on the market for a long time. When exchanging assets, you also need to consider the tax consequences. IRA and 401(k) accounts are taxable upon distribution, while a one-time capital gain on a house may not be taxable.

Contact Us Today

If you are going through a divorce or planning for a future divorce, our lawyers are here to advise you. Please contact us today and arrange a personal, discreet consultation.