How is Marital Property Divided in Georgia? Protecting your Financial Future
Going through a divorce is a difficult and emotional process, and understanding how marital property will be divided is often one of the most important aspects of the process. In Georgia, property division is governed by equitable distribution, which means that the court will divide assets and debts in a manner that is deemed fair but not necessarily equal. As such, it’s important to understand the differences between marital property and separate property, as well as the factors Georgia courts consider when dividing assets.
What Is Marital Property Versus Separate Property in Georgia?
Georgia law categorizes property as either marital or separate. Understanding the difference is key to knowing how property will be divided in a divorce.
- Marital property includes any property acquired during the marriage, such as income, investments, retirement accounts and property purchased together. If an asset is titled in both spouses’ names, it is generally considered marital property. Even if only one spouse’s name appears on the title, if the asset was acquired during the marriage it will be considered martial if there are no provisions in writing to the contrary.
- Separate property refers to anything one spouse owned before marriage, such as personal savings, or a home that was not later mixed with marital property. Separate property may also include gifts that were given specifically to an individual spouse. Even gifts exchanged between spouses (like wedding rings) are typically considered separate property. Family inheritances will always be separate property whether acquired before or during the marriage. Separate property also includes property acquired by one spouse during the marriage where it is explicitly stated in writing that the property is separate.
It’s important to note that certain assets like retirement accounts, family businesses and homes purchased before the marriage, but lived in as the marital residence can be complex and may require expert analysis to accurately determine whether they should be classified as marital or separate property.
What Is Equitable Distribution?
Georgia follows an equitable distribution system when dividing property during a divorce. This means that the court divides property in a way that is considered fair, although it may not be equal. The court will look at several factors, including:
- The financial status of each spouse.
- The health and age of each spouse.
- The length of the marriage.
- The behavior of each spouse (e.g., infidelity, abuse, or spending habits).
- The value of marital and separate property.
The goal is to divide the property in a way that ensures fairness based on the unique circumstances of each case. While a 50/50 split is possible, it’s not guaranteed.
How Are Debts Handled?
Just like assets, debts acquired during the marriage are divided between the spouses. In Georgia, marital debts are generally split equitably, meaning the court will determine how much each spouse is responsible for based on factors such as who incurred the debt, whether incurring the debt was a joint or mutually authorized decision, and each spouse’s financial standing.
Debts might be split evenly, but if one spouse is more responsible for accumulating debt, they may bear a larger share of it. This applies to credit card debt, mortgages, loans, and other financial obligations.
The Role of Mediation and Agreements in Property Division
In Georgia, couples can often reach a property division agreement outside of court through mediation or settlement negotiations. Mediation involves working with a neutral third party to help you and your spouse come to an agreement on property division and other divorce-related issues.
Mediation can be a more cost-effective and less stressful way to resolve disputes, especially if both parties are willing to compromise. While mediation also doesn’t guarantee a 50/50 split, it allows couples to work through property division in a more collaborative manner. If the spouses reach an agreement, it can be formalized in a settlement agreement.
Another way to avoid lengthy court battles is through prenuptial or postnuptial agreements, which clearly outline how property will be divided in the event of a divorce. These agreements can specify which assets are considered separate and which are marital property, preventing confusion and conflict later.
What Happens If One Spouse Doesn’t Comply with the Property Division Agreement?
Failing to follow the property division order can result in serious legal consequences. After a divorce is finalized, the court issues a decree which may include a settlement agreement (if the parties settled) that outlines how assets and debts should be divided. If one spouse doesn’t follow these terms, the other can file a contempt action.
A contempt filing asks the court to enforce the decree or agreement and possibly impose penalties, such as fines or even jail time, depending on the circumstances. It’s essential to consult with an attorney to determine the best course of action if you believe your ex-spouse is not honoring the property division order.
Protecting Your Interests in Property Division
If you want to take steps to safeguard your property before marriage, a prenuptial agreement is the best option. It outlines how assets will be divided in case of divorce and ensures that each party is clear about their rights. Even after marriage, a postnuptial agreement can provide similar protection.
It’s also crucial to fully disclose any separate property you bring into the marriage. If you fail to do this, it may be difficult to prove that the property should remain separate in the event of divorce.
Finally, to ensure your interests are protected during the property division process, it’s important to consult with an experienced family law attorney. A lawyer can help you navigate the complexities of dividing assets, especially when they include high-value items like businesses, retirement accounts, or real estate.
If you’re considering divorce or dealing with property division in your case, don’t hesitate to seek legal counsel. With the right advice, you can protect your financial future and move forward with confidence.
about the author
Diondra Hicks
Associate
Diondra Hicks is an associate attorney at Boyd Collar Nolen Tuggle & Roddenbery, focusing on divorce, custody and asset division. She is particularly passionate about how legal matters impact children and families, and this commitment drives her to advocate fiercely for her clients.