Property Equity FAQs
How is property ownership determined during a divorce?
Each spouse is entitled to an equitable share of all marital property acquired during the marriage. Marital property is all property acquired during the marriage, except for that property received by gift from a third party or by inheritance. A claim for division of property can be tried before a court, or the parties may agree upon a property settlement and have it incorporated into the decree. Once a division of property is made part of the judgment, it may be enforced just as any other part of the judgment may be enforced.
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.
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.
How are Attorney’s Fees Divided in Georgia?
No matter what you have been told BEWARE that the primary rule on attorney’s fees in Georgia is that you pay your own way. The confusion may come from the fact that there are a few exceptions to this basic rule. Paying your own way may mean accessing the marital estate to pay for your attorney’s fees. However, that is a confusing statement as well because there are plenty of times that the marital estate is split evenly and one spouse is nevertheless ordered to pay the entire attorney's fee bills for the other party or spouse.
In a divorce, the two main methods used to pursue attorney’s fees are (a) to level the playing field and/or (b) due to frivolous litigation. Leveling the playing field is intended to prevent a well-to-do spouse from using their superior resources to put the less moneyed spouse at a disadvantage. These fees are meant to ensure that a party with little income and/or little access to financial resources can still have adequate representation to protect their interests. These fees can be awarded on a temporary and final basis. Frivolous litigation occurs when a party takes a position that lacks legal or factual merit, which then causes the other party to expend resources unnecessarily defending against a baseless claim. Fees for frivolous litigation are typically awarded at the conclusion of a case, but it’s also possible to receive them at other times during the litigation.
In other family law cases, there are several statutes which may be used to pursue attorney’s fees in addition to the frivolous litigation method. The statutes are intended mostly to prevent unnecessary litigation as well as to level the playing field, however, they are not as effective as the statutes available to the spouse in a divorce who is seeking attorney’s fees due to the superior resources of the other spouse.
It is never guaranteed, however, that a request for attorney’s fees will be granted, so it is important to strategize and budget accordingly.
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.
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.
For more about about the divorce process, visit our how to file page, or give us a call at (678) 971-3413 to schedule a consultation.