Divorce and Potential Real Estate Issues.

Real Estate Law

There is no disputing that when a divorce occurs, your whole life changes. It impacts every aspect of your life— from your relationships, to your furniture, to who gets the dog.

Your real property is no exception.

In fact, what to do with the family home—who gets it and whether to sell it or not—is recognized as one of the most heated disputes that divorcing couples have.

The Divorce Court’s Jurisdiction.

During the divorce, if the couple cannot agree on who gets to stay in the house and/or whether or not to sell it, the family court judge will decide the issue. It is the judge’s job to decide all issues (not agreed on) that are related to the divorce. This can include issues such as child custody and visitation, and how all debt, and real and personal property owed by the couple should be divided.

The judge’s decisions ultimately culminate in a final divorce decree (or order). The final divorce decree specifies exactly how the matters were decided or agreed upon and it generally orders either one or both parties to do things to carry out the judge’s order. In other words, it describes who gets what and who pays for what.

The Divorce Decree and Real Estate Issues.

But what many people don’t realize is that while a divorce decree may be “final” for purposes of deciding certain marital issues, there are often additional steps that need to be taken to make the decree legally effective.

For example, if both spouses are on title to the family home and the divorce decree says that the home should go to one of them, unless a deed (generally a quitclaim deed) is recorded transferring title from one spouse to the other consistent with the divorce decree, when it comes time to sell the home, title will still be in the name of both spouses.


Because the family court’s divorce decree is not in the property’s chain of title records. It exists only in the civil clerk’s files (although you will also have a file-stamped copy). As a result, the divorce decree will not show up when the closing attorney does a title search of the property. So unless you record a deed transferring title, no one will know about the judge’s order.

Similarly, even if your divorce decree designates your ex as the party responsible for paying the mortgage, if both of you signed the promissory note and/or the associated Security Deed, unless the house properly transferred, if your ex defaults on the mortgage payments, the bank can sue either or both of you for the amount owed; and any foreclosure or debt default may show up on both of your credit reports.

Safeguard Your Rights With Experienced Real Estate Counsel.

At the Law Offices of Mark Weinstein, P.C., our clients benefit from our experience. We have been practicing real estate since 2001. We have offices in Cumming, and we serve clients in Atlanta, Gainesville, Gwinnett County, Bartow County, Hall County, Henry County, Cherokee County, Clayton County, Cobb County, and other counties throughout Georgia. To find out what we can do for you, call us today at: 770-888-7707. Or you can e-mail us with inquiries at: lawofficesofmarkweinstein@gmail.com


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