Who Gets What and How it Is Decided
Are you and your spouse preparing for a divorce in Georgia? If so, deciding who gets to keep what may be one of the most challenging and contentious issues that will need to be addressed and resolved. Georgia is an equitable distribution state. That means that marital property is split in a "fair" manner. An equal 50/50 split is possible, but not guaranteed by law. At Meriwether & Tharp, LLC, our Georgia property division attorneys help clients navigate equitable distribution laws.
Know the Law: Georgia is an Equitable Distribution State
Similar to most jurisdictions in the United States, Georgia is not a community property state. Instead, an equitable distribution standard applies. In a Georgia divorce, the court does not simply total the marital estate and divide everything down the middle. The core question is what division is fair under the circumstances of the marriage, not what division is mathematically equal. To be clear, a 50/50 division may be appropriate in many cases. Still, that is not guaranteed. Georgia law does not presume that each spouse must receive exactly one-half of every marital asset.
Note: Equitable division applies to marital property, not necessarily to everything either spouse owns. The court must first identify the divisible estate, then determine each spouse's equitable interest in that estate. Separate property can remain fully with the spouse who owns it.
Classifying Property Is Crucial to Determining Who Gets What in a Georgia Divorce
One of the first steps in a Georgia property division case is classification. Property must be characterized as marital property, separate property, or some combination of both. To know how property will be split, you need to know how it is classified. Here is a broad overview of the two main categories:
- Marital Property: Marital property generally includes assets acquired as a direct result of the labor, income, efforts, or investments of the parties during the marriage. It can include real estate, bank accounts, investment accounts, vehicles, business interests, professional practice interests, retirement benefits, deferred compensation, restricted stock, household furnishings, and other assets accumulated while the marriage existed.
- Separate Property: Separate property is property owned by one spouse before the marriage, and generally remains that spouse's separate property. The same is usually true for property acquired by one spouse during the marriage by inheritance, gift from a third party, bequest, or devise. The fact that an asset exists during the marriage does not automatically make it marital.
Marital property is always subject to equitable distribution in a divorce in Georgia. Separate property is not subject to equitable distribution. As long as an asset can be properly classified as separate, it will remain with the spouse who owns it and not be subject to equitable distribution.
Commingling, Appreciation, and the True Source-of-Funds Can Be Complicated Factors
It is not always easier to determine if property is marital or separate for the purposes of Georgia law. Indeed, many property division disputes are not about assets that are clearly marital or clearly separate. They involve mixed assets. A spouse may have owned a house before marriage, but the mortgage may have been paid down with marital income. A spouse may have brought an investment account into the marriage, but additional contributions may have been made during the marriage. A business may have existed before the wedding, but its value may have increased substantially because of marital labor, reinvested earnings, or the active efforts of either spouse. Georgia courts distinguish between passive appreciation and active appreciation. If a separate asset increases in value solely because of market forces, that appreciation may remain separate. If the increase in value is attributable to the labor, skill, management, or financial contributions of either spouse during the marriage, the appreciation may be marital property subject to equitable division.
How Courts Decide What Is Fair (Equitable Distribution in a Divorce)
Once the marital estate is identified and valued, the court determines how it should be divided. Georgia courts have broad discretion. Relevant considerations may include the length of the marriage, each spouse's financial and non-financial contributions, each spouse's separate estate, the parties' conduct as it affected the financial condition of the marriage, debts and liabilities, earning capacity, homemaking contributions, child-related responsibilities, liquidity, tax consequences, and the practical ability to divide or transfer particular assets.
A key point to remember is that equitable distribution is a totality of the circumstances analysis. In other words, Georgia courts can evaluate a wide range of different factors to determine how property should be distributed. In most divorce cases in Georgia, there is a starting presumption that a 50/50 split is appropriate. However, courts can and do decide that an unequal distribution is an equitable distribution if there is good cause shown. No matter your circumstances, an experienced Georgia divorce lawyer will protect your rights and your interests.
How Our Georgia Divorce Attorneys Can Help With Equitable Distribution
Dividing property in a divorce is rarely easy, especially for high-net-worth couples and those who own complex property. At Meriwether & Tharp, we help clients navigate the challenges of equitable distribution. If you have any questions about who gets what and how it is decided, our Georgia divorce lawyers are standing by, ready to help. Contact us right away to set up a confidential consultation with an attorney who is experienced in equitable distribution.
Contact a Georgia Property Division Lawyer Today
At Meriwether & Tharp, LLC, our Georgia property division attorneys provide clients with solutions-focused guidance and support. If you have any questions or concerns about property division in a divorce, we can help. Please do not hesitate to contact us today to set up a strictly confidential, no obligation case review. Our firm provides family law services throughout Georgia.