When a married couple has gotten to the point where divorce is the next step, both spouses have typically accumulated a lot of baggage...and property. The property a divorcing couple acquired while married will need to be divided, including the family home, the belongings inside it, and everything in between. A common question for those starting the divorce process is, "Will the division of marital property be split 50/50?" Our Atlanta divorce attorney is here to explain.
How Is Property Split in a Georgia Divorce?
In a perfect world, the couple would work with their attorneys and negotiate a resolution to split their property that they both agree on. Unfortunately, that's not the case for many individuals, especially in a high-asset divorce.
When a couple can't agree on how to split their assets, a Court will make the decision. Georgia courts divide marital property based on the principle of "equitable division." The term equitable does not mean equal. Essentially, equitable means splitting property in a manner that is fair for each spouse.
If property were divided equally in a divorce, it would be a simple 50/50 split. In Georgia, that is not the case. Equitable division of property is a more complicated process where a judge will weigh various factors to decide which spouse is entitled to what property.
Marital Property vs. Separate Property
The first step is to determine whether assets are "marital property" or "separate property." Under equitable division, only marital property is subject to division. However, there are a few exceptions. Marital property is any asset that was purchased during the marriage.
Property that each spouse owned or acquired before the marriage is considered separate property. Additionally, separate property can include a gift or inheritance that one spouse obtained at any time. Separate property isn't subject to division in a divorce, but sometimes separate property can be converted to marital property.
What Factors are Considered in Equitable Division?
If the spouses cannot agree on how to divide their property, a judge will evaluate various factors outlined in Georgia law to determine how to allocate assets and property.
These factors may determine how the judge will decide how to divide property:
- The current and potential income of each spouse
- The value of each spouse's separate property
- The debts and liabilities of each spouse
- The age and health of each spouse
- The duration of the marriage
- The parental responsibilities and expenses between each spouse
- The extent to which each spouse contributed to acquiring existing marital property
- Whether either spouse is at fault for causing a depreciation in marital property
Will Property be Split 50/50?
To determine how it will split assets, the Court will consider the various factors mentioned above. In cases where both parties have similar incomes and a similar separate amount of property, the court will typically divide the marital estate 50/50.
However, if one party earns substantially less than the other, the court may shift a substantial portion of marital assets to the lesser earning spouse. This could mean that the court does a 55/45 or perhaps even greater percentage division. The purpose of this is because the higher-earning spouse has more ability to replenish their estate after the divorce. This is also common in cases where one of the spouses had a large inheritance, and it is considered separate property.
Furthermore, "bad behavior" could impact how assets are divided in a divorce. When considering what a fair division is, the court may look at behavior like adultery, gambling, and domestic violence as reasons to award the innocent spouse with more property in the divorce.
Call an Atlanta Lawyer Today
Every aspect of the divorce process can be complicated and emotional. For matters involving the property division, it's essential to understand how the process works in Georgia. At Harmon Caldwell, our Atlanta attorney will guide you through your divorce as simple as possible while providing effective, strategic, and compassionate representation.
Have questions about property division in Georgia? Call us today at (404) 882-7263 to set up a consultation with our Atlanta divorce lawyer.