In Georgia, only property or assets considered "marital property" is subject to division in a divorce case. This means that property owned by either spouse before marriage is exempt, as are certain individually-owned assets acquired during the length of the marriage. However, are these assets split 50/50 between each spouse? Our Atlanta lawyer explains below.
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Understanding Marital Property Vs. Separate Property
Georgia is an equitable distribution state. Instead of dividing the marital property equally, a judge will divide the property fairly based on each spouse's financial and non-financial contributions to the marriage.
The general rule is that all property acquired by either spouse during the marriage, regardless of title, is marital property and subject to equitable division. This includes:
- The marital home
- Gifts made by one spouse to the other
- Each spouse's 401(k)s
- Any other assets and debts acquired during the couple's marriage
A spouse's separate property includes any asset acquired before the marriage. Additionally, an inheritance or gift (other than from a spouse) acquired by either spouse during the marriage is considered separate property.
How do Courts Divide Marital Property in Georgia?
Once a court determines what assets are marital, it must determine how that property is to be divided. Divorce courts are "courts of equity" or what is fair. In this case, they have complete discretion when deciding how to award marital property.
Georgia courts typically consider the following factors when deciding what a fair and equitable division of marital property is:
- The separate assets and financial status of each spouse
- Any alimony awarded to either spouse
- The income and earning capacity of each spouse
- The conduct of the spouses towards each other during the marriage
- Any wrongful conduct that resulted in a dissipation (waste) of assets by either spouse
- The future needs of either spouse, including retirement planning
- Each spouse's debts
Keeping equitable distribution laws in mind - property is not always split evenly 50/50 between spouses during a divorce. Georgia isn't a community property state, which means that marital property is not automatically divided 50/50 between the spouses in a divorce case.
A more common scenario would have the judge divide marital property with approximately 2/3 of marital assets to the higher-earning spouse and 1/3 to the lower-earning spouse.
Have questions about property division and your Georgia divorce? Contact Harmon Caldwell today at (404) 882-7263 to speak to our Atlanta attorneys regarding your case.