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Post-Divorce Foreclosure: How to Avoid Eviction

A few months ago, I saw an unfortunate case in which a father and his four children were being evicted from their home, which was awarded to the father in a divorce decree. The father had assumedthat his ex-wife was keeping the mortgage current, and was not even aware that a foreclosure sale had taken place. He found out that the foreclosure had occurred when he was served with adispossessory warrant. Three weeks later, he was forced to move his family out of their home.

Under Georgia law, after a foreclosure sale takes place, the new owner becomes the landlord of whoever is living in the house, and the occupant becomes a tenant at sufferance. As a tenant atsufferance, the occupant has no guarantees that he/she will be allowed to remain in the property, and could be subject to a dispossessory action by the new owner. Unless the defendant has aviable defense, in Georgia, a losing defendant in a dispossessory action faces the difficult task of moving out of the residence within seven days.

The first step to avoiding eviction is to understand your rights and responsibilities when you are awarded the marital residence in a divorce. Do not assume, as the unfortunate father above did,that "everything is fine" simply because you are not receiving any notices or phone calls from the bank. You have to take a proactive role in managing your home, including any mortgage payments,insurance requirements and tax obligations. It is often necessary to refinance the home, in order to have the non-participating spouse removed as a borrower; however, there are other optionsavailable that may be better suited to your specific situation. The best way to protect yourself is to consult an experienced family law attorney, whocan explain the legal effects of your settlement agreement, and walk you through the processes necessary to protect your home.

By Savannah Murphy, Associate Attorney, Meriwether & Tharp, LLC


Asset Division
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