In almost every divorce, the issue of what happens to marital property is near the top of the list of things to resolve.
It is also the source of many disputes between divorcing spouses, who both want to move on to the next stage of their lives in the best financial shape possible.
Sometimes, property division issues can be sorted out between a couple with calm discussion in private. In many cases, though, professional help is needed to resolve disputes and, in the most adversarial of cases, litigation and a trial is the outcome.
What can you expect if you are getting divorced in Georgia and need to address the issue of marital property division?
What is property division in a divorce?
In most cases, each individual brings some property into the marriage and, as a couple, also accumulates property during the marriage.
During a divorce, property needs to be divided so that each spouse walks away with a fair share.
This is usually one of the major considerations during a divorce, alongside child custody and support, and spousal support.
It is also one of the main reasons why a divorce becomes “contested”, causing delays and greater expense than a divorce where everything is agreed and uncontested.
How is property divided in Georgia?
Georgia is an “equitable distribution” state when it comes to property division rather than a “community property” state.
This means that the courts attempt to divide the assets and debts fairly. “Fair division” is not the same as “equal division”. So, unlike in community property states, marital property in Georgia may not be simply split down the middle to be considered “fair”.
Separate property is not divided in either method. So, before any property division can take place, all property from marriage must be classified as either marital or separate property.
Marital property in Georgia is considered to be all assets acquired during the marriage, regardless of title, except for items received as a gift from a third party or an inheritance.
Good examples include the marital home, family vehicles, the portion of 401(k) benefits accrued during the marriage, gifts made between spouses, and any other assets and debts acquired during the marriage.
Some couples inadvertently overlook retirement benefits such as 401(k)s, IRAs, and pension plans. These can be difficult to assess but it is important to do so. In long marriages especially, considerable benefits have been accrued during the marriage and these are subject to property division laws in Georgia.
Sometimes, Georgia courts will need to issue a qualified domestic relations order (QDRO), which divides the retirement plan assets into two accounts – one for each spouse.
When it comes to each spouse’s separate property, this is considered to be anything brought into the marriage plus anything received as a gift or inheritance from a third party during the marriage (note: this does not include gifts between spouses).
Separate property is retained by each spouse without any portion passed to the other spouse.
What factors do the Georgia courts consider when dividing property?
Divorce courts in Georgia are “courts of equity.” They have complete discretion over how to award marital property, and the decisions are binding. There is no set formula applied.
A judge will listen to the circumstances in your case and distribute property in any proportion deemed to be fair. Decisions generally take into account the following considerations:
- Each spouse’s separate assets and financial status
- The debts of either spouse
- Each spouse’s income and earning capacity
- Alimony payments made to either spouse
- The conduct of each spouse during the marriage
- Any conduct that resulted in a waste of marital assets by either spouse during the marriage
- The future financial needs of each spouse
- Child custody decisions (if applicable, this may influence the award of the marital home)
What if a prenuptial agreement exists?
If you and your partner signed a prenuptial or postnuptial agreement, this might change things.
If you decide to divorce, the provisions outlined in your prenup or postnup for designating a property as separate (even if accrued during the marriage) may be enforceable, providing the agreement was drafted correctly by a lawyer in the first place.
What happens during property division disputes?
A court trial is only one way to settle a property division dispute in Georgia.
Most divorcing couples want to avoid the delays, expense, and stress of litigation and turn to alternative dispute resolution methods to resolve property division disputes if they cannot reach an agreement together.
There are several options on the table:
- Negotiation/collaboration between lawyers
- Mediation with the guidance of a professional mediator
- Arbitration – where both parties agree to abide by the decisions of a trained arbitrator
A written settlement agreement will need to be drafted in each case to finalize and formalize the agreement.
If the above options are not suitable or fail, your only other option is to pass the decision over to a judge.
Do you need a property division lawyer?
If you are based in the Douglasville area and are experiencing difficulties in reaching a property division agreement with your partner, an experienced Georgia property division attorney at Bardley McKnight Law can help. We can explore alternative resolutions before going down the path of litigation.
To schedule a consultation, please contact us at (470) 264-4204.