As a divorce attorney, we encounter the following scenario all too often: You received an inheritance and purchased your dream home in Cherokee County. Later, you met your dream spouse and got married. You heard putting your spouse’s name on the deed as a “joint tenant with right of survivorship” will make it make easier for him or her to keep the house after your death. Thinking ahead, that seems smart to you so you do just that.
Unbeknownst to you, you just gifted to your marraige/spouse your pre-marital, separate property. The property will now be divided up in a divorce and is subject to “equitable division of marital property”. Why requires an understanding of marital versus separate property in Georgia.
Distinguishing marital property from separate property
In Georgia, before we divide assets in the marriage we must determine whether it is “marital property” or “separate property.” Most things you acquire while you are married, regardless of whose name is associated with the purchase, are considered marital property. If you buy a house and only put your name on the deed, your spouse is still entitled to a portion of the equity in the house.
Separate property on the other hand remains yours after a divorce. Property, items or money received by gift, inheritance or before your marriage are yours alone and will not be divided up in a divorce. If you come into your marriage with the Honda Civic you’ve owned since you were 16, your spouse is not entitled to it – that’s separate property.
An important word of caution: if you put your spouse’s name on your separate property whether that property is a bank account holding the funds from your inheritance, your pre-marital investment accounts or your pre-marital home, what was once separate property is converted to marital property. Just like our initial example, if you use your inheritance to buy a house before your marriage and later put your spouse’s name on the deed for the house-you have converted your separate property into marital property. The property is now subject to “equitable division” in a divorce.
What does equitable division mean?
Equitable division does not mean equal. It means a division that is fair. So if you have unintentionally converted your separate property to marital property, you can argue a fair division would be a division in your favor, not your spouse’s. A lot of factors affect the court’s decision. While it may seem wise to place a spouse’s name on property, bank accounts and other items, doing so can create legal pitfalls and make your property subject to being divided up in a divorce.
Archie Speights is a co-founder and lead criminal law attorney of Speights Law in Cherokee County. He is an experienced criminal defense lawyer who handles an assortment of major felony cases, including murder, sex crimes, aggravated assault, and drug crimes in the state of Georgia.