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Roger
Roger, Attorney
Category: Family Law
Satisfied Customers: 31220
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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My son is the defendant in a pending divorce case. Sizeable

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My son is the defendant in a pending divorce case. Sizeable loans were made by me and the defendant's now deceased father - these were made during the 2008 real estate downturn and were used to remodel their home. Our loosely written loan agreements were not filed as liens against the property but were to be repaid upon sale of the property. Property was sold. Plaintiff (my son's wife) refused to pay back loans, saying she did not sign the documents, yet the monies went toward the home she enjoyed. Thus, proceeds from house sale were placed in escrow. What procedure should take place to ensure that these loans are repaid from marital assets? An attempt to freeze the escrow account? And, if plaintiff is entitled to half the marital assets why would she not be responsible for half the marital liabilities?

Kirk Adams :

Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney. Thanks for your question. I'll be glad to assist.

Kirk Adams :

First, Georgia is not a community property state, so a spouse is not legally liable for the debts incurred individually by the other spouse. So, IF she didn't sign the loan agreement, she would not have any legal liability for the debt.

Kirk Adams :

However, you would be able to enforce the debt against your son. But, since you didn't record a deed of trust to show you were taking the property as collateral/that you claimed a lien, then you may have a hard time capturing the entire proceeds of the sale. If the lien is not recorded, it's not a properly perfected lien.

Kirk Adams :

As for what to do, filing a petition for a temporary restraining order to stop the distribution of the funds until this issue is resolved would be the way to go.

Kirk Adams :

This will provide you with an injunction to stop everything and then make your argument as to why you're entitled to all or part of the proceeds.

Customer:

With GA not being a community property state, does this mean that plaintiff may not be entitled to half the marital assets? She did not contribute monetarily.

Kirk Adams :

No, it doesn't mean that - - exactly.

Kirk Adams :

Georgia is an equitable distribution state as far as property division goes.

Kirk Adams :

This means that the judge/court will divide the property as equitably/fairly as possible. This DOES NOT mean equal distribution - - it means what is fair and equitable.

Kirk Adams :

What judges believe is equitable is a moving target because it involves the judge's discretion on the subject. However, equitable distribution USUALLY results in a 50/50 split of marital assets, but it doesn't have to.

Kirk Adams :

Your son can argue that he has contributed more so he should be entitled to more upon division and distribution of the marital property.

Kirk Adams :

However, how this plays out will ultimately be up to the judge.

Kirk Adams :

Thanks for your questions, and if you need anything further, please don't hesitate to ask.

Roger and 4 other Family Law Specialists are ready to help you
Customer: replied 3 years ago.


Your service was excellent - thank you, Kirk.

Thank you for the kind words. I really appreciate it.

 

Also, thank you for allowing me to assist, and if you need anything further, please let me know.

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