Marital Property & Asset Division Laws in Georgia
If you and your spouse are planning a Georgia divorce, one of the things you will both want to consider is how you are going to divide your marital property and assets. In simple terms, marital property is a state-level legal term that denotes property acquired during the marriage. If you can both agree on everything, you will generally have a much easier divorce. But sometimes you cannot agree, and mediation may be required, or a judge may have to decide for you. Either way, you will want to work with your family law attorney to understand how marital property and asset division issues work. Here is what to know.
What is Considered Marital Property in Georgia?In Georgia, marital property is considered to be anything that was acquired by either spouse during the marriage. That is regardless of the way the property is titled. For example, if one spouse purchased a new vehicle, and titled it only in their name, it would still be considered marital property if it was purchased during the marriage. The home and cars are the most common pieces of marital property. But 401(k) contributions, gifts that were made between the spouses, and other debts and assets also count.
Marital Property vs. Separate Property
Georgia courts distinguish what is “marital” and what is “separate” property. Marital property are assets acquired or bought during the marriage.
- Stocks and bonds
- Assets acquired before marriage
- Gifts from someone else other than your spouse
- Items spouses agree is separate property
How is Property Divided in Georgia?
Property is generally divided equitably between the spouses, in that separate property stays with the spouse who owns that property (such as vehicles acquired before the marriage, or third-party inheritance or gifts). But all marital property gets divided. Because Georgia is not a community property state, it is not bound by predetermined rules, and the court has full discretion when it decides how marital property should be divided between the spouses. That is handled through the process of equitable division.
In Georgia, courts have complete discretion when deciding how to award marital property and will distribute property in what they believe is fair based on the case. When deciding equitable division, courts consider the following factors:
- Financial status of each spouse
- Separate property
- Behavior of each spouse during the divorce process
- Any evidence of misconduct resulting in waste of assets by either spouse
- Future needs of each spouse
- Keep in mind, a judge may favor one party over the other based upon who is at fault for the divorce. For example, in a case of adultery, the innocent spouse may receive more from the settlement if they proved their spouse cheated and sexual relations outside the marriage occurred.
Be proactive during your divorce case and speak with an experienced divorce attorney, especially going through this stage of the divorce process.
Who Gets to Stay in the Marital Residence During a Divorce?
It is based upon the needs of the family or the potential for family violence. However, as a general rule, the custodial parent stays with the children in the marital residence.
What Does Equitable Division Mean?Equitable division is not the process of dividing everything right down the middle, with each spouse getting half. Instead, it is the process of making sure there is equitable division of the assets. That means looking at the financial status of each spouse individually and what kind of separate property they have.
It also usually includes alimony and earning capacity, along with the conduct of the spouses toward one another during marriage (such as abuse), and any wasteful conduct toward their shared assets (for example, a gambling problem). Debt and retirement planning are often taken into consideration, as well.
Do I Have to Disclose All Information Concerning Assets and Debts?
Yes, because if you do not disclose all the information concerning assets and debts, the final award or agreement may be subject to an action to have it set aside. All assets acquired during the marriage are usually divided equally between the two parties. Also, all debts acquired together or separately may be divided equally between the two parties.
What Types of Property Are Considered During Asset Division?Any property that is marital property is considered during asset division. That includes the marital home, along with any other properties owned that are not separate property. Vehicles such as cars, motorcycles, boats, and RVs are also part of the division of assets. But it is about more than just physical property. It is also about the money that the spouses share, both in checking and savings accounts and also in their retirement accounts. If either spouse has stocks, bonds, and other securities, all of those areas can be considered when determining asset division.
What is Non-Modifiable Asset Division?Once a divorce or separation is finalized, certain aspects such as child custody, child support, and often alimony can be revisited and modified in the future. Other aspects, such as property division, cannot. The non-modifiable nature of property division makes it extremely important that it be done right the first time.
Georgia is an equitable division State, meaning that the marital estate is to be divided fairly, but not necessarily equally. Beyond finding a fair division, it’s also important to create a division that leaves as few ties between separating spouses as possible. Negotiating and drafting a thorough settlement, or if a case is litigated, preparing a complete argument for the judge or jury, is essential to try to arrive at a fair, final, and thorough split that minimizes potential future problems.
Things to Consider About Equitable Division
When dealing with or preparing a case for equitable division, make sure to keep some of these points in mind.
Do the terms for equitable division:
- Contemplate the specific timing of certain exchanges and the potential tax consequences?
- Call for joint accounts to be segregated or closed?
- Require that joint debts be paid in a specific fashion and on a certain deadline?
- Consider how family photographs, videos, and mementos will be allocated?
- Take family pets and the associated expenses into account?
- Include back-up provisions in the event one spouse is unable to qualify for an agreed upon refinance of a mortgage?
- Identify how, and when, shared automobile insurance policies and cellular phone plans will be separated?
- Provide a plan in the event there is a tax issue or audit?
- Contain enough detail to prevent one spouse from manipulating the terms to the other spouse’s detriment and frustration?
- Were certain aspects investigated in advance to ensure that they were possible to achieve?
An experienced and knowledgeable family law attorney will not only be able to identify, but also cover potential problem areas to minimize future risks and hopefully prevent additional litigation. Don’t leave your future in the hands of just anyone or just hope that things will somehow work themselves out. People get divorced for a reason, commonly because they can no longer get along with one another. When one spouse harbors ill will for the other, there may be no end to the lengths that the angry ex will go to cause problems and create havoc in the life of the other. A concrete and detailed plan for property division can help alleviate the potential for future chaos.