Legal Question in Family Law in Georgia

We assisted our daughter and her fiancee in the purchase of a home in August, 2009. We provided the downpayment. They both qualified for the First Time Home Buyer Tax Credit. However, because they were not married, the filing of the tax credit had to be done separately. The loan and the deed are in BOTH names. As things would have it, the engagement is off. The ex-fiancee is in the house and has collected his half of the tax credit. Our daughter's amended return was pulled for audit and she has NOT received her portion of the tax credit. She will not be able to keep her half of the tax credit because the house is no longer her primary residence. She wants the house sold. This may not be a viable option. She wants a monetary settlement - her lost portion of the tax credit ($4K). We also loaned $1800 for new carpet which we have not been reimbursed for. The obvious option is to have him refinance and tax her name off the deed and loan AND either have him pay her $4K or have her as a second lien holder. He may not agree. Can this be taken to small claims court in GA in order to get a monetary settlement and get a judgement forcing him to refinance and/or sell?


Asked on 1/18/10, 8:07 pm

2 Answers from Attorneys
Glen Ashman Ashman Law Office also dba Glen Ashman Attorney

If your daughter had talked to a lawyer BEFORE buying she would have been told that it is extremely dangerous and foolish for an unmarried couple to buy property together unless there is a contract resolving in advance these issues. Georgia courts specifically do NOT allow numarried couples the remedies a divorcing couple has.

So unless they had a contract, she gets no monentary settlement and she can't force a refi.

Unless you have proof your $1800 was a loan and not a gift (do you have a promissory note), you likely made a Christmas present of that as it will be hard to prove that was a loan (and even harder to prove it was a loan to him and not her). Again, you needed a lawyer at the beginning to spell all this out.

The sole remedy she has and it is an expensive one, is to sue for partition in Superior Court. That will force a court ordered sale. Neither party gets the house and they split the profit or loss. Unless the parties agree on another answer, or have a contract, partition is the sole remedy.

A small claims court does not have jurisdiction to partition realty, nor do they have jurisiction over the amount in controversy.

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Answered on 1/23/10, 8:18 pm
Charles W. Field Charles W. Field, Attorney at Law

You (or she) can give it a shot in Small Claims court. However, that court can only make a monetary award. It cannot grant the other relief you mention.

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Answered on 1/24/10, 3:03 am


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