Marital Property Division

Divorce in Georgia

When a couple marries, every aspect of each spouse’s life is merged with the other. Married couples typically combine bank accounts, buy a house or other real property together, establish retirement accounts, purchase personal property items such as vehicles and televisions, and accumulate joint debt.

On the other hand, many couples have premarital property, and separate property. Only property acquired by the parties during the marriage is subject to property division in a Georgia divorce.

How is Property Divided in a Divorce in Georgia?

In Georgia, the standard of marital property division in a divorce is called “equitable division.” Equitable property division is an allocation of assets acquired during the marriage based on the parties equitable interests in those assets. Equitable division of marital property does not mean each spouse will receive one half of the marital property “pie.” It means each spouse will receive a fair division of marital property, not necessarily an equal division. In fact, the bad conduct of a spouse may lessen how much of the marital property “pie” they receive in the divorce.

Splitting it 50/50 is Not Equitable Division

Some relevant factors the court considers when dividing marital property equitably include the following:

• Each party’s contribution to the acquisition and maintenance of the property
• Purpose and intent of the parties regarding ownership of the property
• Estate of each party
• Duration of marriage
• Prior marriage of either party
• Contribution of each spouse to the family unit
• Conduct of the parties – during the marriage and cause of divorce

Adultery Does Not Bar a Claim to Marital Property

Adultery, or other bad conduct, on the part of one party will not prevent their claim for portion of the marital property. Adultery will be a factor taken into consideration when dividing property and while it may lessen that party’s share, it does not prevent them from receiving a share of the property.

What is Separate Property?

Separate property includes:

• Premarital property,
• Gifted property, and
• Inherited property

Each spouse is entitled to their own separate property. Property of this kind will remain the separate property of a spouse as long as the property is not co-mingled with the property of the other spouse.

What about gifts from one spouse to the other?

A gift from one spouse to another does NOT constitute separate property. A gift from a spouse is considered marital property and will be subject to equitable division.

It is also important to note that in Georgia, ownership of property is not based on title. In other words, even if a husband buys a truck that is titled in only his name, the truck may still be marital property and subject to equitable division.

How is Premarital Property Treated under Georgia Law?

Premarital property, a sub-category of separate property, is property that was acquired by an individual prior to the marriage. Premarital property that remains separate property is not subject to equitable property division. That seems straightforward, but it isn’t.

Sometimes even premarital property can be hard to distinguish when dividing property during a divorce.

Let’s see why:

For example, a wife may have purchased a home prior to the marriage, making the home her premarital property. However, over the next 15 years the husband lives in that home, helps pay half of the mortgage payment, and his name is on the second mortgage that the couple obtained in order to remodel the kitchen.

• Is the house still the wife’s premarital property?
• Is the husband entitled to a portion of the equity in the home?
• How do you determine what an “equitable division” of the home is?

As you can imagine, marital property division is a complicated issue and requires an experienced divorce attorney to help guide you through it.

Marital Property Must be Valued in Georgia Divorces

In order to divide property according to the equitable division standard, the property must first be valued. Some items will be easy to value, but some will not be so easy.

For example:

If you and your spouse disagree on the date of separation, that could have a significant impact on the value of all marital savings accounts, investments, or retirement accounts. Stock values could have either gone up or down depending on the date of separation and could have a significant impact on the amount of money each spouse receives from those accounts.

Even if you hire experts to value specific assets, it’s not unusual for experts to disagree on value. You need an experienced divorce attorney to help you get your fair share of the marital property.