What is Separate Property?

Edited By: Belinda Martin – Associate Attorney

Anyone considering divorce may be looking into which specific laws affect them, and whether they would be able to keep certain property that they have acquired over time. To make that determination, the courts will look at whether the property in question is the spouse’s separate property, or whether it is considered to be part of the marital assets. As a general statement, separate property refers to property that is owned by only one spouse. This is the opposite of marital property, which is property that is owned jointly by spouses.

It is important to note that the term property does not only include real property (real estate), but all types of property. In other words, vehicles, personal property, money, and other material items can all fall under the definition of property, and can all be considered separate property in terms of a married couple. In community property states, the definition of separate property also includes any property that was obtained before the marriage, as a gift to one spouse but not both, or through inheritance. Understanding this distinction is important, as where you live can affect what might be considered separate property in your case.

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What is Considered Separate Property in Georgia?

Georgia has distinct laws that address separate property and help divide it from marital property in cases where a couple is planning to divorce. According to those laws, separate property in Georgia includes:

• Any asset that was acquired by a spouse before marriage
• Any asset acquired by a spouse during the marriage that came as a gift or inheritance from a third party (in other words, this cannot be a gift from the other spouse)

There are also certain premarital agreements (also commonly called prenuptial agreements) that can be created to designate a spouse’s property as separate, even if it is property acquired during the marriage. This is a delicate area of separate property law, and the importance of careful wording is critical.

Without the right phrasing and specific information, a premarital agreement designed to keep one spouse’s property separate during a divorce will not be enforceable. There have been many cases where one spouse thought they were protecting their separate property by asking for a prenuptial agreement, but later found during their divorce proceedings that the agreement did not hold up.

Working with an attorney to create a premarital agreement is the safest way to reduce the risk of issues with that agreement at a later date. For couples that are already married, however, that an option. These couples will be bound by the separate property law in Georgia, and the court’s ruling on which spouse will receive specific property.

Is Georgia a Community Property State?

Some states have community property laws, where a couple typically has to divide their assets and property on a 50/50 basis when they divorce. A community property state looks at marital and separate property law differently than states that do not have community property laws. In a community property state, the law says that all marital assets are jointly owned. Therefore, all those assets must be split during a divorce.

For anyone planning to divorce in Georgia, it is worth noting that Georgia is not a community property state. Instead, the state uses a process called equitable distribution to divide assets during a divorce. This means that each spouse has an equitable interest in all the property that was obtained during the marriage.

The split is not necessarily 50/50, and may offer much more to one spouse than to another, depending on the circumstances of the marriage, spousal treatment during it, and financial considerations going forward.

While one spouse may appear to receive more in a divorce than the other spouse does, there are a number of factors that go into dividing the couple’s assets. Who has custody of any children born of the marriage is one factor, along with income potential, current earnings, retirement planning, and other issues.

Because Georgia has specific rules for separate property law, and community property laws do not apply in the state, working with an attorney to ensure the fair and equitable distribution of marital assets during a divorce can be very important. Proper legal representation helps a divorcing couple receive what is right under the law, so they can move forward with their lives after a divorce.

Get Your Georgia Separate Property Law Questions Answered Today

Stearns-Montgomery & Proctor has a dedicated team of attorneys here to help you through whatever comes next. If you have questions about Separate Property Law, or want to discuss your specific case, don’t hesitate to reach out to our Atlanta-area attorneys today. We’ll make sure you get the representation you deserve.