My sister is getting a divorce. Sad, but true. I warned her that divorce ranks higher than having a death in the family of things that can stress you TF out according to psychologists.
Her concern was like many other peoples: her house a/k/a the Marital Residence. This was HER house. She raised her kids here. She didn’t want them uprooted to a new neighborhood and change school districts, losing friends and routine in the process. Let’s not forget: the housing market is in a BIG BUBBLE. No one can afford a house these days. The houses are listed for twice what they should be worth, and will get $50k over asking without batting an eye, and usually in cash, and sell within 24 hours, sometimes sooner! That’s not walking around money to get a house, it’s a fire sale cash only with no ceiling bidding. So moving is not on her list of enjoyable things (to be fair, moving is almost never enjoyable even in a pleasant market and with a great desire to move).
How do you split up your things in the divorce? Who gets the house in the divorce? What are you entitled to in a divorce? Will s/he get half of everything??
There are a lot of aspects to a divorce, but by far this is the one that I get the most questions about. I will do my best to address as many sub-facets of splitting up your things when splitting up your marriage. Most of these things are addressed in your Settlement Agreement. Your Complaint for Divorce usually just states that you are both adults, living in Georgia, when you were married, if there are any kids, and that you want a divorce- all statutory law type stuff. The Settlement Agreement is where the the axe comes down.
The Marital Residence- your house, your home.
Who gets the house? There are many factors that go into that decision. If one person wants to keep the house, they can “buy out” the other spouse’s half of the home. This is usually done by refinancing without the spouse who will not be in the marital residence, and giving them half of any proceeds after the mortgage is paid off, fees. commissions for realtors, taxes, and the like. The spouse who is keeping the house must be able to refinance by themselves, and afford the corresponding mortgage.
Do I have to sell my home? Not necessarily. Usually the house being sold and splitting profits occurs when either both spouses or neither spouses want the house.
My sister has a very unique situation. My sister paid cash for her home with an inheritance. She paid for all repairs to the house in cash from inheritance. There was no commingling of marital funds (that is a fancy way of saying her separate money never touched their combined money, say in a joint checking or savings account). There was no “sweat equity” provided by my brother in law, meaning he did none of the repairs by hand. He did not help to bring up the equity in the home with his own bare hands. My sister may have to do what’s called a Thomas calculation, or Source of Funds analysis. A Thomas Calculation is what the Supreme Court used in a case in 1989 (Thomas v. Thomas). Basically, you have to root out where every penny came from and where it went. It can be exhausting and attorneys HATE math. HATE IT. Here’s a brief rundown:
Source of funds analysis
- Determine the amount the husband contributed to the home
- Determine the amount the wife contributed to the home.
- Determine the amount contributed that was marital.
- Determine the amount of marital funds used to reduce the principle balance on the mortgage.
- Determine the value of the home. For example, refer to the purchase price of the home or obtain a current appraisal.
- Determine the total money contributed to the asset (1+2 3).
- Determine husband’s percentage of the home’s appreciation (1 divided by 6).
- Determine wife’s percentage of the home’s appreciation (2 divided by 6).
- Determine the marital portion of the home’s appreciation (3 4 divided by 6).
I know it’s hard, but selling the home needs to be made by math and not your heart. We all know you love your house. You raised your kids there, you fell more in love there, all the Christmases there, etc. But this needs to be a business decision as much as possible.
Because every case is different, there ae other exceptions that can be made. Perhaps you want the kids to finish out the school year and THEN sell the house. You can make arrangements for that. Perhaps one spouse will agree to still pay the mortgage or utilities or both while the kids live there. You can carve out almost any rule you want in your settlement agreement.
Another interesting twist can be when you had the home BEFORE you got married. Then we would need to know if you refinanced to add your spouse at any time or if they helped build the equity in the house another way.
Lastly, how long did you live there together? Judges look to what is fair. If you built a life together and had no idea you were about to get booted out on your butt with nowhere to go, a judge could award you a portion of the equity in the home as “alimony.”
But the house isn’t the only thing you can fight over.
Accounts like bank, stock, brokerage, and/or investment accounts can all be up for grabs.
Retirement and Savings plans are usually the one that really pushes people’s buttons. “It’s MY retirement! Why should s/he get any of it?!?! I worked hard to put my money into my retirement!” Because ideally, the retirement was meant for both of you to retire together and support you both into your golden years. That does not mean anyone is automatically entitled to anything; in fact, I have a case where the wife was denied the husband’s retirement. I have another case where the wife got the Pension but he kept his 401k. This is the area where you need a lawyer the most. Unless you can figure out your 401k or pension or fill out a QDRO, you are gonna need an attorney.
Vehicles. This is less of a hot button issue, most people have their own vehicle for daily use. Much like with the house, if a spouse’s name is on the other’s spouse’s vehicle, there may need to be a refinance involved if it is still being paid off. Having a name on the car title does not automatically mean the car belongs to that spouse. Many women have had their husbands purchase a car for their daily driver, like a minivan for errands with kids. Just because hubby’s name is on it, doesn’t mean he gets the minivan, especially if he’s not primary custodian of the kids. It just makes more logical sense to keep the minivan with the kids.
Alimony. I have addressed alimony before but again, alimony can be temporary or permanent and there are requirements to be met, such as being disabled, before you get alimony. Read more here: https://thespearlawfirm.com/2022/05/23/alimony/
Personal Property. This is another issue that is usually no big deal. You want your great grandma’s tea set? No worries. The problems with personal property usually only arise when 1. there is absolute zero trust left in the relationship, 2. you are fighting over the same gift, like the gravy boat gifted to you both at your wedding, or 3. someone is being REAL petty. If you want the coffee maker and don’t drink coffee you’re being spiteful and petty. If you want the golf clubs but don’t play golf: spiteful and petty. I urge you in those circumstances to grow up.
Debts are usually split by who owes the debt, however, there can be joint debts like a credit card. People are responsible for debts solely in their name unless agreed upon in a different manner in the Settlement Agreement. For joint debts, we ask the parties to split them 50-50 unless another deal is worked out in the Settlement Agreement.
Health Insurance. The courts want to make sure if there are any kids, someone is covering them with health insurance. The courts do have some concern with adults if they are covered or can exercise COBRA. Again, if you don’t know how COBRA works, better hire an attorney.
TAXES! This can be another hot button issue. Have you already filed for the last year? Did you file separate but married or single or single head of house hold? Do you plan on filing joint or separate this year? Who is claiming the children? Are you alternating years of claiming the kids or do you each take one child? What if you have an odd number of children? All things that you can fight about or easily work out. I always put in my Settlement Agreement that I am not a tax attorney and if you need more advice than being able to answer those questions above, I encourage you to seek out a tax attorney.
Other than that, there is nothing really to split for most people. Sometimes there is a beach house in Savannah or something, but more often than not, many people are actually mature enough to work out their divorce in peace.
If you are going through a contentious divorce, I do encourage you to speak to an attorney and hire one at your earliest convenience. I also encourage you to try to make decisions using your head and not your broken heart. If you need support to make that happen, there is no harm in getting into therapy/counseling.