What Does Equitable Division Mean?
Some states in the U.S. use the community
property approach to divide marital property, but under Georgia law, marital
property is divided through equitable division. Rather than being divided
equally (50/50), equitable division means that assets will be fairly divided
between the parties.
Therefore, proper valuation of marital assets is critical
to a fair division of the assets. If the parties cannot come to an agreement on
the value of an item and how it will be divided, the courts will look at the
unique circumstances of the case in order to determine how the assets will be
divided.
What Counts as Marital Property?
Marital property is defined as assets which were acquired during the marriage, while separate property comprises assets which were brought into the marriage or were acquired as gifts or inheritance. Separate property can become marital property through mixing or commingling separate and marital property.
How Courts Determine Equitable Division
Georgia courts consider a number of factors in order to determine how marital property should be divided, but the court has broad discretion in how to determine what is fair or equitable. The court will look at: the conduct of the parties, length of marriage, contributions toward acquisition and maintenance of property, contributions to the family unit, intent of the parties regarding ownership, and existence of separate property.
Why Accurate Valuation Is Important
At Meriwether & Tharp, our attorneys use our custom Marital Balance Sheet (MBS) to organize and list both separate and marital assets, and we use the MBS, to distribute assets between the parties. For example, if one party keeps the marital home and its equity, the other party may receive more of a financial account, to balance the amount each party receives.
Because of this, it is important to have the most accurate value possible. If property is overvalued, the party receiving the asset may receive less elsewhere, and if the property is undervalued, the party receiving the asset may get more than their fair share. Thus, inaccurate values can lead to unfair results and potential disputes post-divorce.
Finality of Property Division Orders
While child custody, child support, and alimony can be modified after a divorce, division of marital property is final and cannot later be modified. Once a court order has been entered, the division of property can only be changed through an appeal, a Motion to Set Aside or by showing fraud, duress, or mistake.
Protect Yourself with Proper Planning
Accurate asset valuation is important to
achieving a fair and equitable division of property in a Georgia divorce.
Without reliable values, one spouse could end up with an unfair share. Financial
experts can help parties avoid costly mistakes, especially in cases involving
complex or high-value assets like real estate, businesses, or investments.
Negotiating a settlement agreement
outside of court can help both parties maintain control over how their property
is divided, rather than leaving those decisions up to a judge. Be sure to
choose an experienced family law attorney who understands the nuances of
Georgia's laws and can ensure your interests are protected
throughout the process. Proper planning now can prevent financial and
legal problems in the future.