Separate property becomes marital when the spouse who owns it acts with an intent to give it to the marriage, such as by putting the other spouse’s name on the title.
The Rule
Under Flory v. Flory, 298 Ga. 525 (2016), property “that once may have been separate–such as gifts, inheritances, or pre-marital property–may be converted into a marital asset if a spouse takes action manifesting an intent to transform that separate asset into marital property.” Flory adds that growth in its value from either spouse’s efforts is marital too, as our premarital property post explains.
A Deed to Both Spouses
In Lerch v. Lerch, 278 Ga. 885 (2005), the husband bought the home before the marriage and later recorded a gift deed to himself and his wife. The court held that when a gift is given to the marital couple, “the property will become marital property absent evidence of a contrary intent by the donor.” The whole home was marital, not just the half the trial court had found. Even their prenuptial agreement, in which the wife promised not to claim his property, did not change that.
Living There Is Not Enough
In Calloway-Spencer v. Spencer, 355 Ga. App. 743 (2020), the wife bought a townhome before the marriage in her name alone. The couple lived there, and the mortgage was paid from a joint account holding the husband’s paychecks. The Court of Appeals reversed a finding that she had given the townhome to the marriage, because she “never took an action after marriage manifesting an intent to transform her separate property into a marital asset.” It sent the case back to apply the source of funds rule instead.
A Transfer That Was Not a Gift
In Horton v. Horton, 299 Ga. 46 (2016), a husband deeded his premarital house to his wife while weighing bankruptcy, and she deeded it back weeks later. The transfer was “anything but a gift,” and the house stayed his separate property.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!