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Determining Whether Assets are Marital or Separate Property

Is an Asset Marital or Separate Property?

Is an Asset Marital or Separate Property?

In Georgia, only marital property and debts are subject to equitable division. Any separate property acquired by the parties is not part of the marital estate and therefore not subject to division. Each spouse's separate property remains the respective spouses' separate property.

However, the question of what marital property is versus what is separate property is more complicated and requires a more in-depth understanding.

The first step is identifying all property, regardless of whether it is marital or separate. Use our property checklist to get started.

Differences Between Marital and Separate Property

Marital Property

  • Income earned during the marriage
  • Purchases during the marriage
  • Title does NOT control

Separate Property

  • Acquired BEFORE the marriage
  • Gift received at ANY time (including during the marriage)
  • Inheritance received at ANY time (including during the marriage)

Separate Property Can Become Marital

Georgia law regarding separate property is extremely complex and somewhat unsettled. Just proving that an asset was the separate property of one party does NOT preclude it from later becoming marital property. Under certain circumstances, a property that once was separate in nature can become marital by the actions of the property. For example, merely adding the other spouse's name to a deed may cause a piece of real estate to lose its status as separate property and make it marital. Similarly, commingling separate property and marital property may have a similar effect.

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