MARITAL RIGHTS TO REAL PROPERTY


27.1 In General


The marital relationship creates an equitable interest in both spouses in all property accumulated during the marriage regardless of how it is titled. [Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980)]. Marital property is to be distinguished from separate property, which is defined as that brought into the marriage, or gifted, inherited, bequested or devised. Georgia has no statute which specifically addresses the issue of when rights to marital property vest.

27.2 Third Party Interests


(a) As to third parties, the doctrine of equitable distribution of marital property should be construed as creating no interest or title in property until an order is entered defining such interest or approving a separation agreement which defines such interest or until a petition for divorce or separate maintenance is filed with a notice of lis pendens, as provided for by Code Section 44-14-610, being filed in the office of the clerk of superior court of the county in which the real property is situated and recorded by the clerk in a book kept by him for that purpose. A husband or wife may alienate real property any time prior to entry of an order as defined above, prior to recordation of a notice of lis pendens, or prior to the filing of a suit for divorce or separate maintenance.

Comment: See O.C.G.A. Section 19-5-7; Goodman v. Goodman, 254 Ga. 703, 334 S.E.2d 179 (1985); Goodman v. Goodman, 253 Ga. 281, 319 S.E.2d 455 (1984). A divorce decree declaring title to be vested in the husband or wife is sufficient to vest title without the need of a deed provided the decree contains a sufficient description of the property. If the decree calls for a deed, but does not contain vesting language, then one must be obtained.

(b) Even absent recordation of a lis pendens, one should obtain both spouses’ signatures on real property transfers which occur during the pendency of a divorce or separate maintenance action.

Comment: Georgia law provides that “pending final determination by the court of the right of either party to alimony, neither party shall make any substantial change in the assets of the parties’ estate except in the course of ordinary business affairs and except for bona fide transfers for value.” See O.C.G.A. Section 19-6-1(e).