Dedicated Douglasville and Atlanta Family Law Attorneys Determined to help You Get What You Deserve
One of the main concerns people have when contemplating divorce or actually going through a divorce is what is going to happen to everything they have worked so hard for:that’s their homes, vehicles, savings and checking accounts, retirement accounts, investments, furniture, jewelry, etc.
At Bardley McKnight Law, we understand that property is often more than just “stuff,” with monetary value; it may also have sentimental value. We fight to make sure that you don’t lose everything that you’ve worked hard for.
When parties go through a divorce, all of the assets acquired during the marriage, with the exception of separate property, must be equitably divided. The purpose of equitable division is to assure the property accumulated during the marriage is fairly distributed between the parties during the divorce. Equitable does not mean equal nor does it mean half. Equitable means fair under the facts and circumstances of each case and fairness is subjective.
Unless parties can agree on how to fairly divide their marital estate, a judge is left to decide what he or she believes is fair based on just a brief snapshot of the marriage during trial. There are several factors the court will consider when deciding how to equitably divide a marital estate. Those factors include:
the length of the marriage;
the age, health, education, and overall earning potential of each spouse;
the financial needs of each spouse;
any prenuptial, postnuptial, or separation agreements;
each spouses’ separate assets;
each spouse’s contribution towards the acquisition of certain marital assets;
each spouse’s contribution to the household and family unit;
and most importantly, the conduct of each spouse during the marriage.
Generally, equitable division will result in an equal or close to equal split of the marital estate unless a judge or jury determines one spouse is deserving of a greater share of the marital estate. One reason is the bad conduct of the other spouse. Marital misconduct (verbal abuse, physical abuse, adultery, etc.) may result in negative consequences in both property division and alimony awards.
If one spouse can proof the other spouse engaged in an extra-marital affair that lead to the demise of the marriage, that spouse can argue they’re entitled to a larger share of the marital assets. Even more compelling would be evidence the cheating spouse used marital funds to carry on the affair.
It is also important to look for hidden assets. In cases with large estates, a spouse may fear losing a large amount of assets during a divorce. With Georgia having no set formula on how to equitably divide marital assets, one spouse may attempt to hide assets in an effort to unfairly affect the outcome of the property division. In order to obtain the marital assets you deserve, it is imperative you hire a competent and skilled legal team to ensure all assets are identified, valued, categorized, and properly accounted for.
Assets owned by a spouse prior to the marriage is considered separate property and is not subject to equitable division. If during the marriage either spouse receives an inheritance, that inheritance remains the separate property of the spouse who received it and is not subject to equitable division. There are however, some exceptions. If the asset owned prior to the marriage or the inheritance appreciates in value during the marriage and that appreciation in value was caused by the efforts of the other spouse, the appreciated value may be considered marital and subject to equitable division.
It is very important that you keep your separate assets separate and apart from your marital property if you wish for those assets to remain separate. If separate assets are commingled with marital assets, those separate funds may become marital. In order for one spouse to ensure that his or her inheritance remains separate property and not subject to equitable division upon divorce, that spouse must avoid comingling their inheritance with any marital assets.
Not only is property and assets owned prior to the marriage separate, so are gifts received during the marriage. Gifts received by one spouse during the marriage remains the separate property of that spouse upon divorce. One exception to this rule is that if the value of the gift appreciates during the marriage as a result of the other spouse’s efforts. That gift or the appreciated value may be deemed marital property and subject to equitable division.