Navigating property division during a divorce can be complex, especially when real estate is involved. At Hobson & Hobson, P.C., we leverage decades of experience and innovative legal tools to guide clients through every aspect of divorce — including the strategic use of interspousal transfer deeds. Understanding how these deeds work in Georgia is essential for protecting your financial interests and ensuring a smooth transition.
What Is an Interspousal Transfer Deed?
An interspousal transfer deed (sometimes called an interspousal transfer grant deed or interspousal deed) is a legal document that transfers ownership of real property from one spouse to another. This tool is commonly used during divorce to facilitate the transfer of a marital home or other real estate, ensuring that property division aligns with the divorce settlement or court order.
Unlike a standard property transfer, an interspousal deed transfer is specifically designed for spouses, offering unique tax and legal advantages. In Georgia, these deeds are instrumental in both amicable and contested divorces, helping to clarify ownership and prevent future disputes.
Georgia Law: Marital vs. Separate Property
Georgia is an equitable division state, meaning marital property is divided fairly — but not always equally — during divorce. Understanding the distinction between marital and separate property is crucial:
- Marital Property: Assets acquired during the marriage, regardless of whose name is on the title.
- Separate Property: Assets owned before marriage or received as gifts/inheritance by one spouse.
However, Georgia law (see O.C.G.A. § 19-3-9) clarifies that even gifts between spouses — such as a home deeded from one to another — are typically considered marital property if purchased with marital funds. The Georgia Supreme Court’s decision in McArthur v. McArthur reinforced that interspousal gifts remain subject to equitable division in divorce.
How Does an Interspousal Transfer Deed Work in Georgia?
The process for executing an interspousal transfer deed during divorce involves several key steps:
- Agreement or Court Order: The spouses, with or without mediation, decide who will retain the property. If an agreement isn’t reached, the court will decide.
- Drafting the Deed: The deed must:
- Clearly identify both spouses
- Accurately describe the property (address and legal description)
- Be signed in the presence of a notary public
- Recording the Deed: The signed deed is filed with the county clerk or recorder where the property is located. This step is critical for establishing clear legal ownership.
- Title Update: If the transfer occurs before the divorce is finalized, the receiving spouse is listed as “married man/woman as their sole and separate property.” After the divorce, the title reflects “unmarried man/woman.”
For more on deed requirements, see the Georgia Superior Court Clerks’ Cooperative Authority.
Benefits of Using an Interspousal Transfer Deed
1. Tax Efficiency: Interspousal transfer deeds are generally exempt from Georgia’s real estate transfer tax, making them a cost-effective way to transfer property during divorce.
2. Streamlined Process: These deeds simplify the transfer of property, reducing the risk of future disputes and ensuring compliance with the divorce settlement.
3. Flexibility: Interspousal transfer deeds can be used not only in divorce but also for estate planning or refinancing purposes during marriage.
4. Mortgage Considerations: If the property has an existing mortgage, the receiving spouse may need to refinance in their own name. This is a critical step to protect both parties’ credit and financial interests.
Common Pitfalls and How to Avoid Them
Misunderstanding Property Status: Many believe that transferring property via an interspousal deed makes it separate property. In Georgia, however, property transferred between spouses during marriage remains marital property if acquired with marital funds, and is subject to division in divorce.
Valuation Issues: Even if one spouse keeps a property or asset, its value will be considered in the overall division of marital assets. Accurate appraisals and documentation are essential.
Documentation Errors: Failure to properly draft, notarize, or record the deed can result in title defects, future legal disputes, or even loss of property rights.
Mortgage Oversights: Not addressing the mortgage can leave both spouses liable for the debt, even after the property is transferred. Refinancing is often necessary.
How Hobson & Hobson, P.C. Supports Clients
At Hobson & Hobson, we combine over 30 years of experience with cutting-edge legal technology to deliver seamless, client-focused solutions. Our attorneys:
- Draft and Review Deeds: Ensure every interspousal transfer deed meets Georgia’s legal requirements and protects your interests.
- Coordinate with Lenders: Facilitate mortgage refinancing and resolve title insurance issues.
- Advise on Tax Implications: Help you understand the tax consequences of property transfers.
- Navigate Complex Cases: Handle high-asset divorces and contentious property disputes with strategic advocacy and empathy.
- Ensure Compliance: Guide you through local recording requirements and court procedures.
Our approach balances empathy with aggressive advocacy, ensuring your parental rights and finances are protected at every stage. We offer initial consultations at our five convenient Atlanta-area offices, including Canton, Marietta, Alpharetta, Milton, and Roswell.
Frequently Asked Questions
What is an interspousal transfer deed?
An interspousal transfer deed is a legal document used to transfer real estate ownership between spouses, often during divorce or as part of estate planning.
Is an interspousal transfer deed the same as a divorce deed?
While sometimes called a “divorce deed,” an interspousal transfer deed is the specific legal instrument used to transfer property between spouses during or after divorce.
Does transferring property via an interspousal deed make it separate property in Georgia?
No. In Georgia, property transferred between spouses during marriage remains marital property if acquired with marital funds, and is subject to equitable division in divorce.
What are the risks of not refinancing the mortgage after an interspousal deed transfer?
If the mortgage remains in both names, both spouses are still liable for the debt — even if only one owns the property. Refinancing is usually necessary to protect your credit and financial interests.
Can Hobson & Hobson help with complex property transfers during divorce?
Absolutely. Our team has extensive experience handling high-asset and complex property divisions, ensuring every detail is addressed with precision and care.
Additional Resources
- Georgia Superior Court Clerks’ Cooperative Authority
- Georgia Code Title 19 – Domestic Relations
- IRS Guidance on Property Transfers Incident to Divorce
- National Association of Realtors: Divorce and Real Estate
- Hobson & Hobson, P.C.
Conclusion
Interspousal transfer deeds are a vital tool for transferring property during divorce in Georgia. At Hobson & Hobson, we bring clarity, confidence, and innovation to every case, ensuring your rights and assets are protected. If you’re considering divorce or need guidance on property division, contact us for a consultation and experience the difference of a client-centric, technologically advanced family law firm.
This article is for informational purposes only and does not constitute legal advice. For personalized guidance, please contact Hobson & Hobson, P.C..
Attorney Sarah Hobson at Hobson and Hobson, P.C. are powerful advocates for those who fight for better futures for those going through divorce and custody law matters.