How Is Property Divided In A Georgia Divorce?
When you and your spouse are divorcing, property division can be highly contentious, with each spouse wanting certain assets and arguing over the values of certain real and personal property. However, there is a specific procedure that is followed to ensure marital assets (and debts) are apportioned in the fairest way possible. If you have questions about asset divisions, it is crucial to have an attorney advise you.
Separate vs Marital Property
Georgia divides marital property under a system called equitable distribution, meaning the marital estate is divided equitably (fairly), rather than equally as is done in community property states. Marital property is anything “acquired as a direct result of the labor and investments of the spouses,” including both assets and debts, throughout the marriage. There are, however, some exceptions to this. For example, anything a spouse receives as an inheritance or gift during the marriage is their separate property. All other property owed prior to the marriage is considered separate property, so long as it is not commingled.
It is possible for separate property to become marital property under certain circumstances, by commingling one’s separate property with martial property. When separate assets become commingled or intertwined with marital assets, a court may find that enough mixing has occurred for the asset to be classified as marital. For example, if one spouse owns a piece of real property, but then marital income is used to pay for taxes and improvements on the land, a court may find that the real property has become a marital asset. In order to ensure that your separate property indeed remains separate in the event of divorce, the best practice would be to maintain a separate account for any separate funds or keep any separate real or personal property titled exclusively in your name.
The Court Will Decide
It is possible for spouses in Georgia to work out a property settlement between themselves. If you are able to reach a full agreement in your divorce, and your agreement passes legal muster, it will generally be entered into the court record and held to be enforceable. However, if you are unable to agree, the court will intervene. There is no hard and fast formula for what constitutes an ‘equitable’ division – the court must weigh several different factors and intangibles to determine the fairest and most appropriate method of division, given that an “equitable” division is not necessarily an equal division.
Some of those factors include:
- The length of the marriage;
- The earning capacity of both spouses;
- The standard of living during the marriage;
- Whether or not one spouse contributed to the earning power of the other (for example, one spouse staying home with the children while the other goes back to school);
- The current and future earning potential of each spouse; and
- Any other factor that the court deems to be appropriate and relevant to consider. The court in these cases generally has broad discretion.
Contact An Atlanta Divorce Attorney
Divorce does not have to be highly contentious and time-consuming. If you need assistance with your divorce and asset division, the Atlanta family lawyers at Buckhead Family Law are happy to assist you. We offer experienced and dedicated representation. Contact our office today to speak to an attorney.