When a family law attorney meets with a prospective client for the first time, that attorney often has to spend time dispelling some divorce myths in order to give the prospective client a better idea of what to expect throughout the divorce process. One widely believed divorce myth is that all marital property will be divided in half. This statement is misleading for several reasons.
First, taking this statement literally does not make practical sense. The court will not make a list of each item of marital property and give 50% ownership to each spouse. There are numerous types of marital property including, but not limited to, the marital home, bank accounts, cars, and retirement accounts. While dividing a bank account in half is not complicated, this solution does not work for other marital assets. Consider the case of the marital home. It would make no sense if the court awarded 50% ownership in the home to the wife and the other 50% to the husband. Who would live in the house? What if one spouse wants to sell the house and the other does not? Rather, instead of splitting each marital asset in half and bringing up a whole other set of potential issues, the court will look at the sum of all marital property and figure out a way to divide that sum in a way that makes practical sense. Maybe the husband is not interested in keeping the martial home. In that case, the court can put the home in the wife’s “column” and give other assets to the husband to balance it out.
Further, this statement is misleading because, in Georgia and many other states, marital property is divided equitably, which does not necessarily mean equally. This means that the court will look at all relevant facts in the case to help determine how the marital assets should be divided. For example, if one party committed adultery and spent marital funds on his/her paramour, the court may give a larger amount of the marital estate to the other spouse to balance out this inequity.
When meeting with a divorce attorney for the first time, it is important to get any myths you have heard out on the table. Don’t be embarrassed if you have believed something that is not true – it certainly won’t be the first time that attorney has heard it. It is better to have any myths dispelled at the beginning of your case than to hold onto to something you believe to be true, only to find out too late that it is not.