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Equitable Division of Marital Property in Georgia

In the United States, property, assets, and debts are generally divided in one of two different ways during a divorce. In a community property state, each spouse is automatically entitled toone-half of the marital estate. In an equitable division state, each party receives an “equitable portion” of the marital estate but that does not necessarily mean that each party is entitled toexactly one-half of the estate. In the United States, there are nine community property states, which include Arizona and California, and the remaining states, such as Georgia, are equitabledivision states.

Prior to discussing Georgia’s equitable distribution of marital property further, it is important to first understand what is and is not marital property. Martial property is the real andpersonal property and assets acquired by the parties during the marriage. Moore v Moore, 249 Ga. 27 (1982). Marital property does NOT include a property that one party brought to the marriage orproperty that one acquired during the marriage by gift, inheritance, bequest, or devise unless the appreciation in the value of said property was caused by efforts of the other property duringthe marriage. Payson v Payson, 274 Ga. 231 (2001) and Bailey v Bailey, 250 Ga. 15 (1982). Of note, gifts between spouses of marital property remain marital property subject to equitable division.McArthur v McArthur, 256 Ga. 762 (1987).

In regards to what the court ultimately determines is marital property, the Supreme Court has reiterated as recently as October 27, 2008 that equitable division does not necessarily mean an equaldivision of property. Arkwright v. Arkwright, S08F1399 (2008). Instead, the court is given broad discretion to determine, based upon the facts in any given case, how the division of maritalassets shall occur. Trial courts tend to exercise this broad discretion by looking at the various factors such as each party’s contribution to the acquisition and maintenance of the property, thepurpose and intent of the parties regarding the ownership of the property, the duration of the marriage, any prior marriage of either party, the conduct of the parties during the marriage and ascause of divorce, and the contribution or service of each spouse to the family unit. Yates v Yates, 259 Ga. 131, Moore v Moore, 249 Ga. 27 (1982), Lowery v Lowery, 262 Ga 20 (1992), and Peters vPeters, 248 Ga. 4980 (1981).

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