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How Is Property And Debt Divided In A Divorce?

In the state of Georgia, the standard is an equitable distribution. Some people refer to it as equitable division, and equitable does not necessarily mean equal.

It means that the finder of fact, which is either the judge or a jury, because the jury can decide divorces, or one state out of two in the entire country in which you can have a jury trial decide divorce issues; but the finder of fact, whether it’s a judge or a jury, is going to divide a property and debt based on what the finder of fact believes is fair. That can be very subjective. It can be fifty-fifty like it is in a lot of cases, or it can be 70/30 or 90/10 or whatever the judge thinks is fair.

If a Couple Owns a Home Together, Who Gets to Stay in the Home?

If there is a person that wants to stay in the home and they can afford it, then the court generally will let them stay in the home as long as there is some kind of provision made for the equity in the house to the other spouse somewhere in the formula of dividing up the assets. It depends on whether the person who wants to stay in the house can afford it, because the court’s not going to give the possession of real property to somebody that can’t afford it and is going to wind up going to foreclosure.

Typically whoever, in a custody situation, wants custody of the minor children that can be the tail that wags the dog in that kind of situation. Courts like to keep kids in familiar surroundings, so a lot of times, let’s say there’s a father who’s been granted custody of the children, a lot of times possession of the marital home goes hand-in-hand with custody of the children, I mean not always but that is a very traditional situation.

Under What Circumstances Can Someone Legally Ask their Spouse to Leave a Home?

You can ask anytime you want, getting is a different thing. If somebody resides in marital home, and I’m kind of crossing into landlord/tenant area hereto as well, but you can’t just force somebody out of their home. If you’re living with a spouse and you’re not getting along, then you need to petition the court either for a divorce or what we call a ‘Suit for Separate Maintenance,’ and that is the closest thing Georgia has to a legal separation. If you go through those channels, then the court will make a decision on which spouse is going to be removed from the marital home.

I’ve had a few situations where a court will order people to stay in the same house together. One time, it was two spouses. They had no children and it was a very large house, and the court ordered one spouse in the top part and the other spouse in the bottom part; not an ideal situation at all. Eventually the house was going to be sold, and the court just didn’t want to order one person out because a lot of times, whoever is left in the house, they’re going to have to pay the mortgage because there are a lot of factors that go into that type of decision.

Can the Court Ever Require a Home to Be Sold?

They do that quite often. Yes, because sometimes neither spouse can afford it. There is a very practical reason why that might occur.

I had a case recently where there was one spouse that was just absolutely obsessed with the property. He just put it before everything even before like interest in children and that kind of thing and the court kind of rightfully recognized that that was a very unhealthy attachment that he had and that house just needed to be sold. In some circumstances, if somebody really wants a house, the court will say, “You can keep the house. But you’re going to need to refinance it and get your spouse’s name off the financing.”

So, then the reason the court of course wants to do that is that they want to separate people in every way that they possibly can if they’re getting a divorce. They don’t want people to be chained together by unnecessary ties, like having a mortgage with somebody years after you’re divorced. It affects your credit and you can’t go and qualify for home on your own and the other spouse may make late payments or let the house go into foreclosure, you can think of all the nightmares that can happen.

Can A Pre-Nuptial Agreement Be Annulled Based on Current Circumstances?

It depends on the prenuptial agreement itself because a prenuptial agreement is a contract, so it is going to be subject to the laws of contracts. If it’s found to be invalid for any reason, it’s going to be thrown out. In Georgia, a prenuptial agreement is subject to very special rules above and beyond just basic contract law though. If a prenuptial agreement is not notarized and signed by two witnesses, then the court can throw it out just on procedural grounds. It depends on what is in the prenuptial agreement.

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