In a divorce in Georgia, one of the common pending issues will be how marital property will be divided. Marital property may include anything from a marital home to cash.

What is considered marital property in Georgia?

Marital property is generally assets (both real and personal property) that accumulated during the duration of the marriage. That is, Georgia divorce laws have defined marital property as that property “acquired as a direct result of the labor and investments of the spouses during the course of the marriage.”

Marital assets may include insurance, stocks, annuity and retirement benefits. Some portions of a personal injury settlement may be marital property. Determining whether a specific piece of property is marital or non-marital is a question of fact.

Is Georgia a community property state?

No, Georgia is not a community property state. Marital assets are subject to equitable division.

How is marital property divided in divorce in Georgia? Are marital assets always split 50/50?

Under Georgia divorce laws, marital property is not necessarily split 50/50. Marital property is subject to equitable division. That is, each marital property will be divided equitably and fairly. The trial court has broad discretion in determining the equitable division of marital assets.

The purpose of equitable division of marital assets is to assure that property accumulated during the marriage be fairly distributed between the spouses. Thus, assets are not always split 50/50 in Georgia.

What does fair and equitable division of marital property mean?

What is a fair and equitable division of marital assets depends on many factors, like:

  • Each spouse’s contribution to the acquisition and maintenance of the property (which would include monetary contributions and contributions of a spouse as a homemaker);
  • Purpose and intent of the spouses regarding the ownership of the property;
  • Duration of the marriage;
  • Any prior marriage of either spouse;
  • Age, health, occupation, vocational skills, and employability of each spouse;
  • Contribution or service of each spouse to the family unit;
  • The amount and sources of income;
  • Debts, liabilities, and needs of each spouse; and
  • Whether the apportionment of property is in lieu of or in addition to permanent alimony.

Can my spouse take my retirement when assets and debts are divided?

Yes, in a divorce in Georgia, a spouse may take the other spouse’s retirement benefits, such as pension, as a part of equitable division. Therefore, dividing a spouse’s retirement accounts may be a part of how assets and debts are divided in a divorce.

What is considered separate property?

Separate property or non-marital property includes property acquired by one spouse before or during the marriage by gift, inheritance, bequest or devise (made by a non-spouse). Usually, a gift to one spouse becomes the separate property of the recipient spouse. When a gift is given to the marital couple, however, the property will become a marital asset absent evidence of a contrary intent by the donor. Some portions of a personal injury settlement may be separate property.

Separate property is not subject to equitable division. That is, separate property are not a part of how assets and debts are divided in a divorce.

It is important to note that a separate property brought into the marriage could be transformed or converted into marital property by certain actions of a spouse. For example, if a spouse inherits a piece of property, that property would be that spouse’s separate property. However, if, for example, that spouse transfers full, partial, or joint ownership in the property to his or her spouse, that property may become a marital asset subject to equitable division.

Who gets the house in a divorce in Ga?

Who gets the house in a divorce in Georgia depends on many factors. Marital home, just like other marital assets, may be subject to equitable division in a divorce case.

Depending on the circumstances, the marital home may be considered to consist of a marital unit and non-marital unit. For example, if a spouse already had the house prior to the marriage, and marital funds are used to reduce the mortgage, some portion of the equity in the home may be a spouse’s separate asset and other portion of the equity in the home may be marital asset. Courts may use the “source-of-the-funds” rule to determine the ratio between the marital portion and non-marital portion of the equity in the home.

It is worth noting that a home that started out as a spouse’s separate property may be transformed into a marital asset by the spouse’s actions. For example, if a spouse purchases a home under her name prior to the marriage, and then deeds the home to both herself and her spouse, to be held as joint tenants with right of survivorship, that spouse may have expressed an intent to transform her own separate property into marital property.

When getting divorced, do you split marital debt? How is marital debt divided in a divorce in Ga?

Yes, when getting divorced, you may split marital debt because equitable division of marital assets includes marital debt. For example, if the married couple purchases a car under both of their names during their marriage and there are payments remaining on that car, this debt will be addressed as a part of equitable division of marital assets.

Contact Georgia divorce attorney for a free consultation.

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