Property division is often one of the most contentious, emotional, and overwhelming issues in divorce. During the marriage, you and your spouse may have acquired a substantial amount of property — and each of you might have different ideas regarding how it should be distributed. But before you make any claims to the family home or your spouse’s retirement account, it’s essential to understand how property and assets are divided in a Georgia divorce.
Georgia is an Equitable Distribution State
When it comes to dividing property in a divorce, Georgia follows the rule of equitable distribution. However, it’s crucial to understand that “equitable” doesn’t necessarily mean “equal.” Under this doctrine, a court would divide marital property between the spouses in a way deemed fair.
Under Georgia law, courts consider the following factors in determining equitable distribution:
- Each spouse’s financial status
- The separate assets of the spouses
- The earning potential and income of each spouse
- Each spouse’s respective conduct toward the other during the marriage
- Whether there was wrongful conduct that resulted in dissipation of marital assets
- The future financial needs of each spouse
- Debts incurred by each spouse
It’s important to understand that you and your spouse don’t necessarily have to litigate the issue of “who gets what” in court. You are free to enter into a settlement and divide your property in any way you wish. In most cases, it’s usually best to work out an agreement outside of court, rather than let a judge decide —this can allow you to have more control over the outcome of your divorce.
What is Marital Property versus Separate Property?
In a Georgia divorce, property is characterized as either “marital property” or “separate property.” Correctly identifying and classifying property is critical to ensuring a fair settlement.
Marital property is defined as any assets earned or property acquired during the course of the marriage by either spouse. Common examples of marital property subject to division can include the family home, various real estate, businesses, vehicles, retirement accounts, artwork, furniture, collectibles, and pensions.
Separate property is that which either spouse had possessed before the marriage took place. Property classified as “separate” belongs to the original owner and is not divided in divorce. Notably, there are some circumstances under which assets or property obtained by one spouse during the marriage would be considered separate property — such as a gift received through an inheritance.
While some assets and property can be fairly simple to value and divide, others can be more complicated. Specifically, the marital residence may have increased in value since it was purchased and may require an appraisal. A family business or pension could also require a valuation.
Commingled Property
Although only marital property is divided in a divorce, complex issues can arise if separate and marital property were “commingled.” For example, suppose you had purchased a vacation home with your own funds before the marriage — if your spouse contributed to its maintenance or marital assets were used for renovation, what would have been considered separate property has been “commingled” with marital property. In such cases, any increase in value due to these efforts would be subject to equitable distribution.
Dividing Debts in a Georgia Divorce
Just as property and assets must be split up, debts incurred by either spouse while married must also be divided before a judge will sign the divorce judgment. Credit card debt, car loans, mortgages, and other types of debt must all be taken into account before the case can be finalized.
A court may allocate specific debts to one spouse or require that they share the responsibility to pay it off. There are also certain situations in which a judge would likely not order that a spouse be held liable for the other’s debts, such as if it was incurred as a result of gambling, reckless spending, or other misconduct.
Contact a Knowledgeable Georgia Divorce Attorney
Divorce is never easy, but having experienced legal counsel by your side can help to take the burden off your shoulders. At The McGarity Group, LLC, we provide diligent representation and skilled advocacy for Georgia divorce matters so you can rest assured that your legal and financial interests are protected. Call (770) 932-8477 or contact us online to schedule a consultation at our Buford or Braselton office.