Who Gets the House in a Georgia Divorce?

Three Options for the Family Home

The family home is usually the largest single asset in a Georgia divorce. Courts do not automatically award it to either spouse. Instead, the parties choose — or the court orders — one of three disposition paths:

Sell and split the proceeds. List the home, pay off the mortgage and closing costs, and divide the net proceeds under the equitable distribution framework. This is the cleanest option because it eliminates ongoing mortgage liability for both parties.

Spousal buyout. One spouse keeps the home by paying the other their share of the equity. The retaining spouse must refinance the mortgage into their name alone to release the departing spouse from the loan. Georgia law exempts divorce-related property transfers from real estate transfer tax under O.C.G.A. § 48-6-2(a)(5), so the Quitclaim Deed can be recorded with a $0-consideration PT-61 form.

Deferred sale. The court allows one spouse — typically the custodial parent — to remain in the home until a triggering event (the youngest child turns 18, graduates, or a set deadline passes). The settlement must specify who pays the mortgage principal, interest, taxes, and insurance during occupancy. The departing spouse retains the IRC § 121 primary residence exclusion if the home sells within three years of vacating.

How to Calculate the Buyout Amount

A buyout requires three numbers:

1. Current fair market value — obtain a professional real estate appraisal, not a Zillow estimate.
2. Outstanding mortgage balance — request a payoff statement from your lender as of the expected closing date.
3. Net equity = fair market value minus mortgage payoff minus estimated closing costs.

If the home was purchased during the marriage with marital funds, the departing spouse typically receives 50% of the net equity (or whatever percentage the court orders). If one spouse owned the home before the marriage, the Thomas v. Thomas source-of-funds calculation splits the equity into marital and separate components based on who paid what.

The Refinancing Requirement

A divorce decree cannot release a spouse from a mortgage. The original promissory note binds both signers regardless of what the judge orders. If the retaining spouse defaults after the decree, the lender can pursue the departing spouse for the full balance, damage their credit, and foreclose.

The settlement agreement should mandate a strict refinancing deadline — typically 90 to 120 days. If the retaining spouse cannot qualify for a solo refinance within that window, the agreement should require the home to be listed for sale immediately. Do not rely on an informal promise to refinance "eventually."

Investment and Rental Property

Investment properties follow the same classification rules as the family home. A rental purchased during the marriage with marital income is marital property. A premarital rental that appreciated passively stays separate, but one that appreciated because of marital effort (renovations, active management) contains a marital component.

Rental income generated during the marriage is marital regardless of who manages the property. If you own multiple investment properties, each one needs its own classification, valuation, and disposition plan.

PT-61 Transfer Tax Exemption

When one spouse transfers real estate to the other via Quitclaim Deed, Georgia exempts the transfer from the standard real estate transfer tax. To claim the exemption:

1. Complete the PT-61 form online through the GSCCCA portal
2. Mark the form as exempt with $0 consideration
3. Cite O.C.G.A. § 48-6-2(a)(5) as the legal basis
4. Print the confirmation and attach it to the Quitclaim Deed when recording with the county clerk

The Georgia Divorce Financial Split & Asset Division Guide includes a home equity buyout calculator and the full Thomas tracing worksheet for premarital homes paid down with marital income.

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