Divorce and the Marital Residence

Last updated on April 8, 2021

Someone recently asked on our website: I have been married for 9 years and my name is not on the house we live in, do I have a legal right to any money from the home?

Yes, you probably do have a claim to a portion of the equity in the marital residence. To fully answer this question we would need a little more information. For instance, is there any equity in the home? You cannot divide equity if none exists.

In Georgia we divide marital property equitably. That raises two issues. First, what is marital property? Marital property is generally any asset (or debt) that is acquired during the marriage so long as the property was not a gift or an inheritance that has been kept separate. Property which was owned prior to the marriage can also be considered pre-marital and may not be divided by the court. The court can divide marital property regardless of whose name the property is in. Secondly, “equitably” simply means fair in the opinion of the court.

If the house was purchased during the marriage by either you or your spouse, chances are it is marital and any equity would be divided by the court. If the home was purchased by your spouse prior to the marriage, you still might be entitled to a portion of the equity. In this case we would perform a Thomas calculation to determine what portion of the equity was pre-marital and what portion is marital. Then, the court could decide how to equitably divide the marital portion.

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