My father owns his home and is married but they have decided to get a divorce. He owned the home long before he married his wife and he never put her name on the deed. They have been married for 4 years. He wants her and all of her children to vacate his property now before the divorce is final. How should he go about that.
Family Law Attorney
Unfortunately, until a judge says otherwise, she has as much right to the house as he does. I dont know what stage the litigation is at, but it sounds like your fahter needs a "nisi" or temporary hearing on the issue of the residence. It is at that point that the judge decides where people can live, and other "temporary" issues.
This can also be done by mediation, where they can agree (with the help of a neutral) as to all the details, like when she and the kids move out, and who pays for what in the meantime.
Finally, there is the option of assisting her in relocating. very often one spouse won't go because they really dont know where to go or how they will afford it.
If the divorce has been filed, I would presume that tensions are high enough that nobody is going to give in on either side, so a Nisi would be the way to go. If that is the case, tell your Father to ask for it as soon as possible. Guessing that you are in Cherokee County, it may be February before you can get a court date.
I wish you the best of luck. Should you have any further concerns, feel free to contact me email@example.com.
Family Law Attorney
Your answer touches on the issue of, what is marital property? The mere fact that a peice of property is titled solely in one party's name is not determinative to define that property as individual property. Marital property is subject to equitable distribution in a divorce action. If the Husband and Wife have lived together in the house, the Wife will most likely try to establish that, what was once individual property, was converted to marital property at some time during the marraige. In essence, she would be claiming that your father made a gift to the marraige.
There is another area of marital property, called mixed property. This is where the Wife's interest in the house may be limited by the number of years she and your father were married. She would be entitled to the increase in value in the home within those 4 years that was caused by active improvement by the couple. Increases by mere market activity would not count, and she would have no claim to those amounts.
I would like to add that I always advise my clients to move out of the house if they can, but I never advise them to force the other party out. In dealing with domestic cases, you want to reduce bad facts that may arise when equitable decisions are being made. Avoid any bad acts or facts, because your father may lose the house that he could otherwise be entitled to.
Divorce / Separation Lawyer
You have received some very helpful responses from the above attorneys. The only thing I want to add is that your father should sit down with a family law attorney and discuss Georgia law in the divorce process, his rights, property division, etc. He should also inquire about the attorney's experience in handling a divorce as well as the attorney's familiarity with the Superior Court Judges in Cherokee County. If your father decides to retain the attorney, make certain there is a written agreement for the services and that your father understands all the terms in the attorney contract. Thank-you, Melanie Brubaker