During divorce proceedings, all property is divided into one of two categories: marital property and separate property. The parties also have the opportunity to come to a property division agreement ahead of trial on their own, in which each spouse presents their own valuation of the home in negotiations. If a final agreed-upon property distribution proposal is reached, it still must be approved by the court and incorporated into the final judgment decree before it becomes enforceable.
As a result, understanding the different types of property in Atlanta which may be subject to division upon divorce can make a substantial difference in obtaining a favorable outcome. For this reason, you should reach out to one of ADLG’s team members before attempting to identify and value your own assets.
Property in Atlanta is jointly-titled when the deed and title are drawn up in the name of two or more persons. The default classification of title held jointly between any two or more persons in Atlanta is Tenancy in Common without right of survivorship. Joint tenancy, or joint tenancy with right of survivorship, must be elected and disclosed deliberately in order for that status to be conferred.
The default classification of Tenancy in Common applies to both real and personal property. For example, applicants for Georgia vehicular Certificates of Title and/or license plates showing joint ownership must declare this by use of the word “and.” The right of survivorship in title to a vehicle must intentionally be disclosed separately and will not be assumed.
With regard to financial accounts, each party’s share of a joint account is in proportion to the net contribution by each to the sums on deposit, unless there is evidence to the contrary, even though the financial institution is not responsible to record the source of deposits or application of withdrawals to and from the joint account. No right of survivorship between joint owners of a financial account is assumed.
Whether property is held jointly is a distinct issue from whether it is considered separate or marital property. Even though both spouses may be listed on the title, the property may still be awarded to only one spouse as part of the equitable distribution of assets. Likewise, property held by a single spouse can be considered marital property depending on the source of funds used to acquire and invest in that property.
The marital home is often one of the larger assets to be divided. Whether the marital house is in one spouse’s name or both, if the home was acquired after the couple married, it is considered the property of the “marital unit” and is subject to equitable distribution upon divorce. Even if the home was acquired prior to the marriage or deeded exclusively to one spouse or another, if the couple lived in that home as a family, the fact-finder in a local divorce trial will employ the “source of funds” rule to determine what proportion of each spouse’s funds and of the marital funds went into making payments and/or improvements to it.
If there are children from the marriage, then it is likely that temporary divorce orders will permit the spouse with custody to stay in the home with the children and later receive the family home as part of the settlement, if there are sufficient assets beyond the house for the other spouse to receive an equitable share. If there are not sufficient assets, the court might order the house sold and the sale price divided fairly between the divorcing spouses.
The grounds upon which the couple divorces can also affect the ultimate disposition of the marital home. If one spouse is found to have committed family violence, a felony, financial fraud, or adultery, then the judge or jury is more likely to award the home to the non-offending spouse.
A spouse who is allowed to remain in the marital home under temporary divorce orders or a temporary order from a motion for exclusive possession would be granted possession of the home and would not be obligated to make rental payments to the other spouse.
In Atlanta, title to real property grants the right of ownership and enjoyment of all the lands described in the title, the buildings and other things permanently attached thereto, any resources below ground, and all air space above the property in question. Title to personal property such as vehicles and stock certificates also conveys rights of ownership in the same way.
Correctly assigned title is called vested. When the title to a property is vested in the name of only one spouse, only that spouse is responsible for signing deeds and conveyances. At divorce, however, the concept of ownership is “put on hold,” as it were, during the proceedings in order for the court to account for all assets either jointly or singly held by the couple and to determine, based on certain criteria set down in case law, which property can be construed as “marital property.”
It is possible that assets or property held in title by one spouse only may not be awarded to that spouse as separate property. The outcome depends on the court’s findings regarding the record of contributions – monetary and non-monetary – that went into acquiring, improving, or maintaining that property or enhancing its appreciation beyond the effect of market forces. The divorce order will define which property is awarded separately to either spouse and divide all marital property equitably between the two spouses.
In Atlanta, once a petition for divorce has been filed, it is unlawful for one spouse to transfer title in any type of property in order to avoid subjecting it to division according to the verdict of the jury or judge. That being said, the law makes it clear that a Notice of Lis Pendens is required in order to protect the title of real property in a divorce case. Spouses who are aware of a risk that the other party may attempt to hide assets from the court would be well advised to file a Notice of Lis Pendens with the Superior Court clerk in the county where the real property is located.
Atlanta Divorce Law Group