What About The House

"Home" takes on new and sometimes painful meaning when a couple decides to divorce. Often, the first dilemma will be who remains in the home and who moves out. Frequently, neither party wants to be the one to "abandon" the home, especially when there are children and neighborhood ties.

Although parties usually want to decide at the outset of a divorce action that one party will move on a temporary basis, it is not uncommon for parties to decide to remain under the same roof, especially when it may be cost-effective to share expenses, to cooperate with each other for marketing the home, or to continue to share in parenting until a final settlement can be reached.

If there are children, generally, the parent who has been the primary caregiver will remain with the children. However, now that joint custody is so favored, parents often dispute who has been the primary caregiver or, at a minimum, will contend that each has shared equally with the child-rearing responsibilities and, consequently, neither should leave the home until a judge makes a decision as to custody.

In every case, regardless of the parent's desire for custody, the children's needs should be considered the first priority. The key question becomes "How can you make transitions and minimize the disruption of the children's daily routine?"

If the home is clearly the separate property of one spouse, the other spouse may choose to move out. However, beware of making arbitrary decisions as to whether the house is "separate" property without consulting an attorney.

Sometimes, a party will get so anxious to remove the other spouse from the home that he or she will change the locks, remove the personal belongings without the other's consent, and create an atmosphere of exclusion to the extent that the other spouse is literally barred from the marital residence. These actions are not appropriate and almost never achieve peaceful results.

If there is a genuine fear of violence and retaliation when a divorce action is filed and one spouse needs the other to move out for safety reasons, there are legitimate actions that can be brought to the judge's attention so that these matters can be handled with the protection of the court. Ask your attorney about the relief that can be provided pursuant to the Georgia Family Violence Act.

When considering what to do with the marital home, in addition to the temporary issues of whether to move out or whether to remain in the home, it is important to focus on the financial issues related to this asset. Look for your settlement statement, deed, and any information regarding the purchase price, the current mortgage balance, the fair market value, and any liens and equity lines that might be secured by your home. Who made the down payment? What was the source of funds? Can either spouse afford to keep the home without assistance from the other? Can the home be refinanced to make it a more favorable situation for the custodial parent and children? Is there equity available in the home that might be used to pay marital debts?

On a temporary basis, who will make the mortgage payment? Pay the utilities? Handle repairs and cosmetic improvements? What benefit, if any, will the party receive who moves from the house while the divorce is pending if he or she is contributing to the monthly expenses of the home?

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