You and your spouse should try to reach an amicable settlement regarding property distribution. You may sign a property settlement agreement outside of court to delegate how your assets are to be divided. For this to be enforceable, it must be incorporated into the final Divorce Decree set by the judge. Absent such an agreement, it is the exclusive responsibility of the court to both assign value and then divide it equitably. For more insight on the role of Alpharetta courts in distributing assets, get in touch with a member of our team.
If you and your ex cannot agree on how to divide your assets, it is the responsibility of the Superior Court to make a property award and issue a decree within the Divorce Decree dividing your assets and liabilities completely. Specifically, when the parties to a divorce cannot agree on property distribution between themselves, it falls to the Alpharetta courts to accomplish two things:
Fact finders such as the jury in a jury trial must ascertain the value of the couple’s assets and the extent of their debts using evidence, witness testimony, and the services of professionals such as tax accountants, forensic accountants, or actuaries. Should the divorce trial be appealed for any reason, the Appeals Court relies heavily on the discovery and findings of fact from the trial court, so it is their responsibility to be both thorough and accurate.
In regard to reach of the court, Alpharetta courts have complete discretion when it comes to the distribution of a couple’s marital property. They take into account many factors concerning each spouse, including:
The court then distributes the martial property between the two parties in an equitable fashion, which is meant to be fair but not necessarily equal.
A divorcing couple who owns a marital home has a very large asset to divide. Often, the parent awarded custody elects to remain in the home or is awarded the home by the court. This is thought to provide the children with a little stability during the difficulties of their parents’ divorce.
Sometimes there are no children, or neither spouse desires to keep the house. In these cases, the couple may agree to sell the home and split the proceeds. However, there are times when the spouses cannot agree, or when both spouses demand to have the house, that a court may incorporate an order to sell the home and split the profit in the final Divorce Decree.
If keeping your home is important, then it is advisable to attempt to mediate a settlement with your spouse through Alternative Dispute Resolution before allowing the court to order your home sold. At other times during a contentious divorce, one spouse may stop making mortgage payments. In this case, the strength of that financial asset – the sellable home – is in danger of losing value every month that it comes closer to foreclosure. Here, a judge might order the house sold immediately and the proceeds split, or at the least the existing mortgage paid off, before the financial damage to the marital unit extends any further.
If, on the other hand, at the time of the divorce the house just can’t be sold – the mortgage is underwater, the market is low, or it needs repairs that neither spouse can afford – a judge may order both spouses to hold onto the home for a specific time period (hopefully when a more favorable selling price can be obtained), at which time it must be sold. In this instance, the court order will specify who is responsible for paying the mortgage, taxes, insurance, and upkeep on the home. If you are concerned about being forced to sell your home by a local divorce court, talk to an Alpharetta attorney at our firm who specializes in property division.
Dividing up marital property is not an easy task, especially in the case of an indivisible structure such as a home, or when there are emotional attachments involved. If you and your spouse cannot agree on property division, the courts will have to make those decisions for you based on what they believe is fair to both parties. For more information on the role of Alpharetta courts in distributing assets, contact our intake team and schedule a consultation with an attorney.