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In Georgia, Equitable Division Does Not Mean Equal

Unlike some states such as California or Arizona, Georgia is not a community property state. This means that unlike in community property states, upon divorce a couple’s marital assets are not automatically divided equally among the divorcing spouses. Georgia’s method of dividing marital property, assets or debts during the divorce process is known as equitable distribution or equitable division.  See O.C.G.A. § 19-5-13; Fuller v. Fuller, 621 S.E.2d 419 (Ga. 2005);Scherer v. Scherer, 249 Ga. 635 (1982); Stokes v. Stokes, 246 Ga. 765 (1980). Although there is no set formula used to divide marital property in Georgia. Thus, Georgia judges and juries must use their discretion in determining what is equitable or fair under the circumstances of the particular case. In coming to the conclusion of what constitutes a fair or equitable division of a couple’s marital property, a court may indeed find that an equal division is what is fair and equitable in that case. However, according to Georgia case law, “an equitable division of property does not necessarily mean an equal division.” Mathis v. Mathis, 281 Ga. 865 (Ga. 2007).

With this being said, if you are currently going through the divorce process, there is no guarantee of how the court may determine your matter. So, it may be to your advantage to seek to enter into a Settlement Agreement with your spouse to determine the division of your marital property and debt. This way, both you and your soon to be ex-spouse may bring back an element of choice and certainty into how your assets will be divided post-divorce.

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