As discussed in our original post entitled "The Four Parts of Georgia Divorce," Georgia is an equitable distribution state. This means that upon divorce, a couple's marital property is not divided equally or 50/50, but marital property is divided equitably or fairly upon divorce. O.C.G.A. ยง 19-5-13 and Fuller v. Fuller, 621 S.E.2d 419 (Ga. 2005). Not only are marital property and assets divided equitably upon divorce, but marital debts and obligations are divided equitably upon divorce as well.
Only marital assets and debts are subject to equitable division upon divorce. An asset or a debt is deemed marital if it was acquired by the parties during the marriage. If an asset or debt is deemed marital, it is subject to division regardless of whose name the property is listed in. Stokes v. Stokes, 246 Ga. 765 (1980). Essentially, all property acquired during the marriage, like cars, homes, business and furnishings are marital property, unless some exception applies. Alternatively, a spouse's separate property is not subject to equitable division. Separate property is generally defined as property acquired by one spouse prior to the marriage or property acquired by on spouse by gift, inheritance, bequest or devise, even though during the marriage, remains that spouse's separate property. Payson v. Payson, 274 Ga. 231 (2001) and Bailey v. Bailey, 250 Ga. 15 (1982).
There is no set formula or calculation used to divide marital property in Georgia. Thus, Georgia judges and juries rely on certain factors and factual determinations in order to determine how the parties' marital property should be divided. To divide marital property, a Georgia court or jury may consider the following:
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Each parties contribution to the acquisition and maintenance of the marital property;
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The purpose and intent of the parties regarding the ownership of the property;
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The separate estate or non-marital property of each of the parties;
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The length of the marriage;
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Any prior marriage of either party; and,
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The service contributed by each spouse to the family unit.
In addition to the above mentioned factors, Georgia courts may also consider whether the couple's separation was caused by the misconduct of one of the spouses (for example, if one spouse commits adultery is willfully abandons the other spouse). If so, the judge or jury may rely on this information when determining how the parties' marital property should be divided. In fact, the portion of marital property awarded to the guilty spouse may be negatively affected by his or her misconduct.