Bivek, Brubaker & Prescott - Marietta family law and divorce attorneys

Division of Real Property

In most divorces, the marital residence is the largest asset between the parties. The first issue that must be addressed is whether the marital residence should be sold or if one of the parties will retain the property. The same process takes place if the parties have other martial real property as well. Once an agreement is reached on what to do with the real property the calculation of each party’s interest in the property must take place. For marital residences that were brought into the marriage, the Georgia Supreme Court has an analysis that is used in determining the source of funds. The Source of Funds analysis is not only used for real property but for other marital assets and debts. The purpose is to determine the amount in which the real property is marital vs. separate property. 

Selling of Real Property

 The option of selling the home is a good option for parties who do not wish to retain the marital residence or cannot afford the house on their own. Once the parties agreed to sell the home, the parties will need to agree on the selling price of the property. This can be done from each party obtaining their own appraisal. The next decision is when to sell the property. Selling and buying of property cannot happen overnight. Many times one party has moved out and already has a separate property while the other party stays in the house during the divorce process. Depending on the financial situation during the case, one party may need to stay in the marital residence for a few months post-divorce before moving into their own property. The details of the arrangement will be outlined in the settlement agreement. This holds each party accountable whether the sale of the property takes place right after the divorce or if one party stays at the property for a while before the sale. Failure to comply with the settlement agreement may result in a contempt case being brought against you.

One Party keeps the Marital Property

The other option is one party keeps the marital property. Normally, the party that is keeping the house will have to buy out the other party. The parties must agree on the value of the home to determine each person’s proceeds would be if the home was sold. Then the settlement agreement will outline how the party will receive the equitable share of the marital residence. Also, it would need to be decided when the retaining party would become responsible for the marital property and the household expenses on their own. Lastly, if the marital property is jointly held or not in the name of the retaining party, a Quitclaim deed will need to be executed to transfer the title of the property. The same will need to be done for household expenses such as insurance, HOA fees, and utilities. If you are ready to discuss your divorce case, give us a call toll-free at 866-527-2630  to speak with one of our experienced Marietta Family Law Attorneys.


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