If a married couple buys a house using one person’s credit but both names are on the deed, who is entitled to the house in the event of a divorce?
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If a married couple buys a house using one person’s credit but both names are on the deed, who is entitled to the house in the event of a divorce?
Asked on January 28, 2011 under Family Law, Georgia
Answers:
M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney
Answered 13 years ago | Contributor
In determining the rights to a residence in a divorce, it does not matter whose name is on the mortgage, or even if both names are on the title. The assumes, however, that the property was not purchased prior to the marriage or inherited by one of the parties because in that event it would be deemed to be separate (as opposed to marital) property. The reason is that GA is an "equitable distribution" state, meaning that all marital property acquired during the marriage should be divided fairly. The "marital" property, consisting of any other property acquired by either spouse during the marriage, will be distributed equally, unless the court finds that equal division would be unjust. Any property possessed by either spouse during the marriage is presumed to be marital property unless it can be shown that the property is actually separate property.
Specifically, as to who gets to keep the house, there are several factors that the court will most likely address in making its determination. First of all, the spouse receiving primary of the children (if any) stands a much better chance of being awarded the home; divorce is traumatic enough for a child without forcing them to move. Another factor that helps determine the settlement of the home is the emotional attachment that one or both spouses have to the home; for example, if the home has been in one of the spouse's family for generations, then chances stand to reason that they will be awarded the home. Also, many stay-at-home parents are considered to have a much greater attachment to the home than spouses who are gone at work all day; therefore a house may be awarded on this basis. Finally, the spouse who can more readily afford the house has a greater chance of being keeping it.
Note: However, if you and your spouse can come to an agreement it is likely to be much better than what the judge gives you, so try to negotiate with your spouse first.
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