How is Property Divided in a Divorce?
In most Georgia divorce cases, one of the core issues is how debts and assets of the marriage will be divided between the spouses. Georgia is an equitable division state, meaning that marital property is to be allocated fairly between divorcing parties.
In the eyes of Georgia courts, a fair split is not necessarily synonymous with an equal split, and judges determining how the marital estate is to be divided may consider many factors in making their decision, including the length of the marriage, the conduct of the parties, and each party's contributions to the marital property and family unit.
Only marital property is subject to equitable division in a Georgia divorce. Separate property, on the other hand, is not considered to be a part of the martial estate and is therefore presumed to remain with the spouse to whom it belonged before to the divorce. As such, prior to dividing assets and liabilities in a divorce, spouses must first determine which property is marital and which is separate.
The Georgia Supreme Court has defined marital property as "the real and personal property and assets acquired by the parties during marriage." This definition encompasses the income acquired by each spouse during the course of the marriage, even if the spouses have maintained separate bank accounts. Georgia's definition of marital property also includes the marital home, vehicles, furniture, and other property purchased by either spouse during the marriage. Generally speaking, anything acquired by either party during the marriage is classifiable as marital property. This is true regardless of how the property is titled. So, an asset which was acquired during the marriage is marital property, even if it is held in the name of only one spouse. Conversely, any property acquired by a spouse prior to the marriage is considered to be that spouse's separate property.
There are a few noteworthy caveats to the marital property rule. First, certain assets may be the separate property of a spouse if they are acquired as a gift from an outside party. The gift generally remains the receiving spouse's separate property and is not subject to equitable division in a divorce.
The exception to the general marital property rule also applies to inherited property. In Georgia, any property inherited by one spouse is considered to be that spouse's separate property, regardless of whether that spouse received the inheritance before or after the commencement of the marriage. Such an inheritance will not be considered part of the marital estate and will not be subject to equitable division in a divorce but will instead remain with the spouse who received it.
Written by: Katie Morgan Johnson