When tensions are high in marriage, forcing one spouse to leave a residence may seem like the best decision for everyone. Here’s how to legally kick a spouse out of the house in Georgia.
A spouse cannot throw their spouse out of the house without an official legal order. Each party is entitled to an equitable division of marital assets and debt. Marital assets include assets either spouse acquired during the marriage, including residential property.
Can One Spouse Legally Kick Their Partner Out of The House?
If spouses purchase a house during the marriage, it is marital property. Even if one spouse’s name is not on the mortgage, their spouse cannot remove them from the house. Even if the couple were unmarried, they must follow eviction procedures.
Spouses cannot legally kick their spouse out of a residential property until Georgia issues a legal order. Under Georgia law, spouses have an equal right to access the marital home until a judge enters an order for exclusive possession. A judge can issue a Temporary Protective Order if the wife has proper grounds to file for a protective order. A TPO is a separate filing and action from the divorce.
A judge may also order a temporary order from a motion for exclusive possession filed in a contested divorce. If the home environment becomes hostile, especially if violence or any credible threat of violence occurs, a spouse should file a TPO and/or a contested action for divorce with a motion for exclusive possession.
Who Gains Marital Property in a Georgia Divorce?
The court determines who gains property possession on a case-by-case basis. The best-case scenario is for spouses to agree on a partial settlement concerning the marital residence. The court may require the parties to sell the marital residence in a trial. The judge might award the marital residence (and any equity) to one spouse (the custodial parent) and balance the remaining marital assets in an award to the other spouse. The court’s decision will depend on the case’s details, the family, the number of children, the respective parenting plan proposals, cumulative marital assets, alternate housing, etc.
How Does a Georgia Court Legally Divide a Residence?
Assuming the parties do not have a pre or post-nuptial agreement, a Georgia judge must consider the possible investment of separate property in the marital residence and the document’s title.
From a practical perspective, parties must evaluate fair market value (via an appraisal) and assess equity, if any.
Regarding possible investment of separate property, parties must consider any separate investments put into their home, including renovations, upgrades, and mortgage payments paid from separate property (not simply a separate account containing marital funds).
Parties must look at how the property is titled. In recent years, several cases have emphasized the title to real estate and the ownership/account designation of financial accounts. If a previously separate home goes to both spouses, the property becomes marital, even if the spouse who signed the deed at the closing did not consider this outcome.
A Georgia court must consider all of the above to determine a fair “equitable division” of the marital residence.
How Can A Georgia Court Trial Affect The Process?
A Georgia judge could order the parties to sell the marital residence and divide its equity. Accordingly, if the parties desire to work out an arrangement to market the property on a schedule to maximize value, they must do so before trial.
If the court orders one spouse to move out temporarily, the earning spouse must pay the mortgage and utilities in lieu of temporary child support. When dealing with a temporary hearing, counsel should frame the exclusive possession argument within the context of the parenting plan proposal, which is in the children’s best interest.