During divorce proceedings, all property is divided into one of two categories: marital property and separate property. Even though both spouses may be listed on the title, it is possible for a property to still be awarded to only one spouse as part of the equitable distribution of their 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 it.
With these and other relevant nuances in the distribution of assets, it is best to discuss different types of property in Marietta which may be subject to division upon the dissolution of your marriage. A seasoned attorney from our firm can help you identify and value properties so you know what to expect during your divorce case.
Whether property is held jointly is a distinct issue from whether it is considered separate or marital property. Property in Georgia is considered jointly-titled when its 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 Georgia 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 realty and personalty. For example, applicants for vehicular Certificates of Title and/or license plates desiring joint ownership must declare this by use of the word “and.” The right of survivorship in title to a vehicle must be intentionally disclosed separately and will not be assumed.
With regard to financial accounts, each party’s share of a joint account is proportionate to the net contribution by each to the sums on deposit, unless there is evidence to the contrary. This is true even though the financial institution is not responsible for recording 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.
The marital home is often one of the larger types of property in a Marietta marriage. Regardless of whether the marital house is in one spouse’s name or in both, if it 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 portion of each spouse’s funds and of the marital funds went into making payments and/or improvements to it.
The grounds upon which a couple divorces can also affect the ultimate disposition of the marital home. For instance, if one spouse is found to have committed domestic violence, a felony, financial fraud, or adultery, then the judge or jury is more likely to award the home to the non-offending spouse.
If there are children from the marriage, temporary divorce orders will likely permit the spouse with primary physical custody to stay in the home during the pendency of their case. A spouse who is allowed to remain in the marital home under temporary divorce orders would be granted possession of the home and would not be obligated to make rental payments to the other spouse.
The primary custodial parent may also receive the family home as part of the divorce settlement if there are sufficient assets beyond the house for the other spouse. If there are not sufficient assets, the court might order the house sold and the sale price divided fairly between the divorcing spouses.
Title to real property conveys rights of ownership. In Marietta, this includes the right of ownership and enjoyment of all the lands described in the title, the buildings and anything 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 any type of property is vested in only one spouse’s name, that individual is solely responsible for signing deeds and conveyances. At divorce, however, the concept of ownership is “put on hold” during the proceedings so the court can account for all assets either jointly or singly held by the couple and determine which can be construed as “marital property.”
It’s important to note that just because an asset is held by only one spouse doesn’t mean that it will be awarded to them as separate property upon the dissolution of their marriage. The outcome depends on the court’s findings on the record of contributions – both 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 assets are awarded as separate property and which will be divided equitably between the two spouses as marital property.
Once a petition for divorce has been filed, it is unlawful for one spouse to transfer title of any property in order to avoid subjecting it to division. That being said, the same statute makes it clear that a Notice of Lis Pendens is required to protect the title of real property in a divorce case. Spouses who suspect that their ex may attempt to hide assets from the court should file a Notice of Lis Pendens with the Superior Court clerk in the county where the real property is located.
You have the opportunity to come to a property division agreement before trial on your own, in which you and your ex can present your own valuations of the home. If a final agreed-upon property distribution proposal is reached, it must still be approved by the court and incorporated into the final divorce decree before it can be enforced.
You should work with an attorney when making determinations about the value and types of property in Marietta you wish to divide during your divorce case. Call our intake team today to learn more about drafting a fair asset distribution agreement.