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Who gets the marital home in divorce?

When a marriage ends in divorce, one of the most emotional decisions for the divorcing couple is deciding who gets the marital home. Reaching a resolution that satisfies both parties can be difficult.

In Georgia, the property accumulated during your marriage is considered marital property and is subject to equitable division if you divorce. Equitable division usually means 50-50. However, selling the home and dividing the proceeds 50-50 may not be an attractive option.

If you have children living in the home, Georgia courts generally prefer awarding the house to the spouse who has primary residential custody of the children - assuming he or she can afford to keep up payments. The other spouse may receive:

  • A larger share of other marital assets of make up for the value of the home
  • An equitable share of the proceeds when the house is sold at a future date

If you do not have children, then you and your spouse can try to reach a negotiated property settlement that results in each party receiving an equal share of the marital property, including all assets including as real estate, savings and retirement benefits. If you leave your case in the hands of a judge, you may end up with a resolution that neither of you likes.

What if I owned the home before my marriage?

If you owned the home before your marriage and did not put your spouse's name on the deed, then the home would be yours to keep. However, your spouse would be entitled to an equitable share if:

  • He or she contributed marital property to the house, either in the form of home repairs or mortgage payments
  • The home appreciated in value during your marriage

If you put your spouse's name on the deed, then the house is marital property and your spouse is entitled to an equitable share.

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