Article_Property

Placing Your Spouse's Name on Property You Owned Prior to Marriage

Property that you own prior to marriage remains non-marital property and not subject to equitable distribution upon a divorce. In simpler terms, you owned it before marriage, you will continue to own it after marriage; your spouse will have no interest in it (there are a few exceptions to this, but we can ignore them for the purposes of this subject).

However, it is a frequent occurrence that after marriage, a spouse, say the wife, will put her husband's name on the title to property that the wife owned prior to marriage. She will do so with good intentions and think nothing of the legal consequences if the parties ever get a divorce. And unfortunately (or fortunately, depending on which side of the issue you are on) there are indeed major legal repercussions to this act.

In general, no matter your intent, unless there is strong evidence that placing your spouse's name on the title to property was not meant as a gift, under Georgia law, your placing your spouse's name on property you owned before marriage will be seen as gifting him or her the property.

How does this work in practice. Say husband owns a house prior to marriage that has $200,000 of equity in it. Husband marries wife, and a few years into the marriage, husband puts wife on the title to the home so that they own the home jointly. Then a few years later, the parties get a divorce. What is the effect of putting the wife's name on the title:

If husband had not put his wife's name on the title, at the divorce, the $200,000 of equity would remain his pre-marital property, and with certain exceptions too complex to go into here, the wife would not be entitled to any of the $200,000.
However, since husband put wife's name on the title as a joint owner of the property, absent strong evidence to the contrary, the court will treat the house as if the husband gifted the house to her, and the wife will be entitled to an interest, maybe 50% or more of the house.
There is a third scenario, one often practiced by business people with creditors. The husband in this instance, for fear of creditors collecting on the house, takes his name off the title to the house and put the wife's name on the house as the sole owner of the property. Now what? Well, the house may very well become the wife's separate, non-marital property, to which the husband, who owned the property prior to marriage, and who built up $200,000 in equity prior to marriage, may have $0 in interest left in the house. The house may be treated as the wife's non-marital property, received through gift.

The long and short of it, is do not place your spouse's name on property that you owned prior to marriage without first consulting an attorney as to the legal affect this act might have. If you do not intend a gift, if you intend a transfer to protect the home from creditors, the transfer of title to your spouse can be accomplished in a way that does not potentially gift the home in its entirety to your spouse. However, don't assume that the intent, uncoupled with actual evidence of the intent, will prevent it from being considered a gift. Absent compelling evidence, the court will indeed treat any such transfer of title as a gift, and if so, it will produced nasty, unintended consequences for you should you ever get divorced.

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