Marital Home Disputes in Atlanta Divorce | Fulton County

How Marital Home Disputes Are Handled in Atlanta (Fulton County) Divorce Cases

For many couples going through a divorce in Atlanta, the marital home is one of the largest assets they own — and one of the most difficult issues to resolve. Questions may arise about who remains in the home while the divorce is pending, who pays the mortgage and other expenses, whether the house should be sold, and how the equity will ultimately be divided.

For divorce cases properly filed in Fulton County, these issues are handled through the Fulton County Superior Court. Fulton County has a dedicated Family Division that handles divorce and other domestic-relations matters. Understanding how disputes involving the marital home may be addressed can help you prepare for the financial and practical decisions that may arise during your divorce.

What Happens to the Marital Home During an Atlanta Divorce?

There is no single answer to what happens to a house when spouses divorce. Depending on the circumstances, the spouses may ultimately agree that:

• One spouse will keep the home
• The home will be sold and the proceeds divided
• One spouse will remain in the home temporarily before a future sale
• One spouse will receive other property in exchange for the other spouse receiving a greater interest in the home
• Another arrangement makes sense based on the couple’s finances and property

If the spouses cannot agree, the disputed issues may ultimately have to be decided by the court. Georgia follows principles of equitable division when marital property is divided. Equitable division does not necessarily mean that every asset is divided equally. Georgia appellate decisions recognize that marital property is allocated based on the parties’ respective interests and that an equitable division is not necessarily an equal division.

Does It Matter Whose Name Is on the House?

Whose name appears on the deed can matter, but title alone does not necessarily answer every question about how the home will be treated in a divorce. The court may need to determine whether some or all of the equity in the property is marital property, separate property, or a combination of the two.

For example, one spouse may have owned the house before the marriage. That does not necessarily mean every dollar of equity in the home at the time of divorce will be treated as that spouse’s separate property. Georgia courts have recognized that when marital funds are used during the marriage to reduce the mortgage on a home that one spouse brought into the marriage, a portion of the resulting interest may constitute marital property subject to equitable division. That can make the history of the property important, including when it was purchased, how it was financed, and how mortgage payments and improvements were funded during the marriage.

Can One Spouse Stay in the Marital Home While the Divorce Is Pending?

Yes. The final disposition of the house does not necessarily have to be decided immediately when a divorce is filed. One spouse may remain in the marital home while the case is pending. Depending on the circumstances, the spouses may agree about temporary possession of the home or the issue may need to be addressed by the court.

The fact that one spouse remains in the house during the divorce does not, by itself, determine who will ultimately receive the home or how its equity will be divided. Temporary arrangements and final property division are different issues.

Fulton County Has an Automatic Domestic Standing Order

Divorce cases in Fulton County have an additional local consideration. The Fulton County Superior Court Family Division uses an Automatic Domestic Standing Order that applies to cases filed in the Family Division and remains in effect through entry of the final order.

Among other restrictions, the order regulates certain conduct involving property, utilities, and insurance while a case is pending. Fulton County court materials identify the Automatic Domestic Standing Order as part of the domestic-relations filing process.  That makes it important for someone filing or responding to a divorce in Fulton County to read the standing order and understand the restrictions that apply to the parties during the case rather than assuming that either spouse can make unilateral changes involving the marital residence.

Who Pays the Mortgage While an Atlanta Divorce Is Pending?

The filing of a divorce does not automatically answer who should pay the mortgage or other household expenses. The answer may depend on the spouses’ existing financial arrangement, who is living in the home, their respective incomes and resources, any agreement they reach, and any temporary orders entered by the court. Expenses associated with maintaining a home may include:

• Mortgage payments
• Property taxes
• Homeowners insurance
• HOA fees
• Utilities
• Repairs and maintenance
• Other recurring property expenses

These expenses can become especially important when maintaining two households places additional pressure on the family’s finances. For a more detailed discussion of this issue, see our guide to Who Pays the Mortgage and Household Expenses During a Georgia Divorce?

What If Both Spouses Are on the Mortgage?

The divorce case and the mortgage contract are two different things. If both spouses signed the mortgage loan, an agreement between the spouses or an order allocating responsibility for the debt does not necessarily change the contractual rights of the mortgage lender.

That distinction is important when one spouse plans to keep the house. A divorce settlement may provide that one spouse is responsible for the mortgage, but additional steps may be necessary to actually remove the other spouse from the loan obligation. Depending on the circumstances, that may involve refinancing, selling the property, paying off the loan, or another arrangement acceptable to the lender.

Can the Marital Home Be Sold During the Divorce?

Yes, the spouses may agree to sell the home as part of resolving the divorce. A sale can sometimes provide a practical way to address both the mortgage and the equity in the property. After mortgages, liens, closing costs, and other appropriate expenses are paid, the remaining proceeds can be addressed as part of the overall property division.

When the spouses disagree about whether the house should be sold, who should remain in it, its value, or how the equity should be divided, those issues may become part of the contested divorce. The timing of a sale can also matter. Some couples may agree to sell during the case, while others may structure an agreement that allows one spouse to remain in the home for a period before it is sold.

How Is the Equity in the House Determined?

Determining the equity generally begins with the value of the property and the debt secured by it, but deciding how that equity should be treated in a divorce may require additional analysis. Relevant questions can include:

• When was the home purchased?
• Was it purchased before or during the marriage?
• Who contributed the down payment?
• Were marital funds used to pay the mortgage?
• Did either spouse contribute separate property?
• Were improvements made during the marriage?
• Has the property increased or decreased in value?
• What mortgages or other liens currently exist?

Georgia law can become particularly important when a home has both separate and marital components, determining each spouse’s interest may depend in part on how the home was purchased and how the mortgage principal was paid during the marriage, including whether marital or separate funds were used.

What If the Spouses Disagree About the Value of the Home?

Before spouses can meaningfully negotiate what happens to a house, they may need reliable information about what it is worth. Depending on the case, that could involve an appraisal or other evidence concerning the property’s fair market value.

Value becomes particularly important when one spouse wants to keep the house. If part or all of the equity is marital property, the overall settlement may need to account for the other spouse’s interest. The house should therefore be considered as part of the entire property division rather than viewed in isolation.

Can Marital Home Disputes Be Resolved Through Mediation?

Yes. A disagreement about the marital home does not necessarily require a judge to decide the issue at trial. Spouses can negotiate throughout a contested divorce, and mediation may provide an opportunity to resolve disputes involving the house along with other financial issues.

Possible negotiated solutions may include selling the property, refinancing it, establishing a deadline for a future sale, determining responsibility for expenses until the sale occurs, or allocating other assets as part of the overall property settlement. If an agreement cannot be reached, the remaining property issues may ultimately need to be resolved by the court.

How Should You Prepare for a Marital Home Dispute in Fulton County?

Start by gathering information that provides a clear financial history and current picture of the property. Useful financial records may include:

• The deed
• Mortgage statements
• Closing documents from the purchase
• Refinancing documents
• Property-tax records
• Homeowners-insurance information
• HOA statements
• Records of major improvements
• Appraisals or other valuation information
• Documents showing the source of the down payment
• Records showing mortgage payments during the marriage
• Information concerning other liens on the property

If the divorce is contested, financial information concerning the marital home may also become part of discovery. Fulton County’s Family Division identifies a Domestic Relations Financial Affidavit and required document production among its mandatory-discovery materials.  The goal is to understand not only what the house may be worth today, but also the financial history necessary to determine what interests the spouses may have in the property.

Marital Home Disputes in Atlanta and Fulton County Divorce Cases

The marital home can involve several different questions during an Atlanta divorce: who stays in the house while the case is pending, who pays the expenses, whether the property should be sold, how much equity exists, and how that equity should ultimately be divided.

Those questions are often interconnected with the rest of the couple’s financial circumstances. Understanding the property’s history, current value, mortgage obligations, and the rules that apply while the divorce is pending can help you make informed decisions about how to address the home as part of the overall divorce.

Brendan Dalton represents clients in divorce and property disputes in Atlanta, throughout Fulton County, and across Georgia. Flat Fee Family Law provides flat-fee representation through settlement or trial so clients know the agreed legal fee before moving forward. Schedule a call today to learn more about how Flat Fee Family Law can help with your divorce matter.