What happens to the house in a Georgia divorce?

Is the house marital or separate property?

A home bought during the marriage is generally marital property and can be divided, even if only one spouse's name is on the deed.

A home one spouse owned before the marriage, or received as a gift or inheritance, is generally that spouse's separate property. It can become partly marital, for example if marital money paid down the mortgage or improved the home, or if the other spouse was added to the deed.

Georgia isn't a community property state. If spouses can't agree, a judge or jury divides marital property based on what's fair in their situation, looking at things like each spouse's income, contributions to the household, and the children's needs.

The three usual outcomes

• Sell the house and divide what's left after the mortgage and selling costs.
• One spouse keeps the house and buys out the other's share, usually by refinancing the mortgage in their own name.
• Keep it together for a set time, for example until the youngest child finishes school, then sell. The agreement should say who pays the mortgage, taxes, insurance and repairs until then, and exactly when and how it will be sold.

Many couples decide this themselves in a settlement or in mediation. A judge decides only if they can't agree.

The deed and the mortgage are two different things

The deed says who owns the house. The mortgage is the loan. A divorce decree, or a quitclaim deed signed by one spouse, can change who owns the house, but it doesn't take anyone's name off the loan.

The lender isn't part of the divorce. If both spouses signed the mortgage, the lender can still look to both of them, and a late payment can affect both credit reports. That's why a spouse who keeps the house is usually required to refinance within a set time, or the house must be sold.

While the divorce is going on

• Keep paying the mortgage, property taxes and insurance as you normally do, unless a court order says otherwise.
• Don't sell, rent out, or borrow against the house without the other spouse's written agreement or a court order.
• Read any order you receive when the case is filed. Some metro Atlanta courts, including DeKalb, issue a standing order in every family case that sets rules for both spouses while the case is open.
• If you're thinking about moving out, talk to a lawyer first. Where you live during the case can matter for custody and support. If you don't feel safe, your safety comes first.

Taxes

When a home is sold, federal tax law lets many owners exclude up to $250,000 of profit, or $500,000 for a married couple filing jointly, if they meet ownership and use rules. Divorce can change who qualifies and when. A tax professional can tell you how the timing of a sale affects you, and IRS Publication 523 explains the rules.

Related guides

• Free checklist: papers to gather
• How long a divorce takes in Georgia
• First steps if you're thinking about divorce