My husband and I remarried after five years of being divorced. In October 2019, during the time we were divorced, I purchased a home in Louisiana. In March 2020, my ex-husband had a home custom built in Georgia for $445,000; it’s now worth $700,000.
In December 2020, we remarried. I contemplated selling my home in Louisiana and moving into his home in Georgia. We planned to put the $200,000 proceeds from the sale of my house into major additions and remodeling of his house. I’ve already added an $8,000 California Closet to the main bedroom of his home. I have one adult son, and my husband has two adult children.
How do I protect my investment in the aforementioned house if he expires or we divorce again? I also want to be fair to our children, if something happens after we both expire. He has suggested we leave a will so the kids can split the property three ways.
What are my best options? Here are four I’m considering: 1) putting my name on the deed, which he is willing to do; 2) obtaining a transfer-on-death deed; 3) leaving a will (which can be changed — correct?); and 4) avoiding probate altogether.
Should I seek guidance from a financial adviser or a Georgia divorce lawyer? Thank you so much. Have a blessed day!
Second Time Around
“Tread with caution before selling it and commingling your assets with your husband’s, regardless of how you go about this.”
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Dear Second Time Around,
History has a horrible habit of repeating itself.
The safest and most transparent way to own a property together is for you both to be on the deed of the home, as well as on the mortgage, and to write a postnuptial agreement dictating what happens to your assets should you divorce again. If you decide to do this, you should agree on the type of co-ownership agreement you enter into. Georgia has three main types of homeownership: sole ownership, joint tenants and tenancy in common.
With joint tenancy with right of survivorship, you would each own an equal 100% share of this property, and if one of you died, the other would assume full ownership. With tenancy in common, there is no survivorship rule, and you can own a certain percentage of the property — that is, if you are investing $200,000 in a property valued at $700,000, you may decide to take a 28.6% ownership interest in this home. If you divorced, I don’t see how that would serve either of you.
Georgia is an equitable-distribution, rather than a community-property, state, and Louisiana is one of nine community-property states in the U.S. But anything you acquired before the marriage is still typically treated as separate property in both places. In Georgia, for example, assets that you have acquired during your marriage will be treated equitably, if not always equally. But you’ve been through divorce once before, so you’re up to speed on this.
In Louisiana, assets acquired during the marriage are split equally, unless you have a prenuptial agreement specifying otherwise, or you are subject to a court order that will distribute marital assets in another way. Regardless of whether you live in Louisiana or Georgia, if you invest $200,000 in your husband’s home, you will have commingled that asset — that is, turned it from separate property into marital property. Your question is how you should commingle your assets, not if you should do it.
Divorce versus dying intestate
Let’s run through your options as you see them: 1) Putting your name on the deed (and the loan) would be a good start, if he is willing to cede 50% of this property to you. 2) A transfer-upon-death deed is revocable, and can be amended or revoked during the person’s lifetime. 3) A will, as you suggest, is also subject to change. And 4) you would avoid this property going through probate if you pursued the first option and put your name on the deed.
I wonder whether your mention of a “divorce attorney” was a Freudian slip. What if you do divorce? Would you be happy with having to split this property? Your home is your sanctuary and a source of financial stability. Tread with caution before selling it and commingling your assets with your husband’s, regardless of how you go about this. And, yes, always make financial decisions with the advice of an adviser and a family-law attorney.
Another possible scenario: Your husband dies intestate, meaning without a will. “Suppose the real estate does not explicitly state that it is owned as joint tenants with rights of survivorship. In that case, it is assumed to be held as tenants in common, and according to the Georgia inheritance law, it may need to go through the probate process to be appropriately transferred to heirs or beneficiaries,” according to the Georgia Probate Law Group.
Don’t make legal or financial decisions in a vacuum. Ask yourself why you divorced the first time around. Yes, people have remarried the same person and had it work out (see Judy Sheindlin, aka Judge Judy, and Jerry Sheindlin), while others have found they have the same — or different — problems the second time around (see Elizabeth Taylor and Richard Burton). Maybe your husband has changed, or maybe you have changed. I hope this time works out for both of you.
Just please take into account what I said about history.
You can email The Moneyist with any financial and ethical questions at [email protected], and follow Quentin Fottrell on X, the platform formerly known as Twitter.
The Moneyist regrets he cannot reply to questions individually.
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