Last updated on April 12, 2024

How property is divided during divorce in Georgia

On behalf of divorce lawyer Samuel Siemon

Along with child custody matters, one variable that tends to weigh heavily on people’s minds during divorce is how their debts and property will be divided. The laws dictating property division during divorce vary from state to state, but Georgia uses the same legal model favored by most other states.

Is Georgia A Community Property State?

In a word, no. Georgia follows a principle known as “equitable distribution.” The differences between the community property and equitable distribution models may seem small, but they can have a large impact on how assets are divided.

In a community property state, nearly all assets acquired by either spouse during the marriage are considered community property (jointly owned) and must be split 50-50 between the spouses. In equitable distribution states, marital property must be divided equitably, which doesn’t always mean “equally.” Judges can deviate from a 50-50 split if there are compelling reasons to do so. The equitable distribution model only applies to marital assets, not separate property. These distinctions are explained in greater detail below.

Separate vs. marital property

In Georgia and other equitable distribution states, the process of dividing assets during divorce begins with a careful inventory of all property and other assets owned by either spouse. These assets are categorized as either separate property or marital property.

Generally speaking, separate property in Georgia includes any assets owned by independently by either spouse prior to marriage. Under certain circumstances, other assets can also be considered separately owned, even if they were obtained during the marriage. For instance, inherited property that was specifically willed to one spouse alone may be considered separate property even if it was received while the couple was married.

Certain exceptions aside, however, most assets that were earned or acquired by either spouse during the marriage are considered marital property, even if only one spouse’s name is on the title. Because property is divided differently during divorce depending on how it is classified, accurately distinguishing between separate and marital property is a very important part of obtaining a fair property settlement in a Georgia divorce.

Dividing marital property

During divorce in Georgia, separate property is typically retained its original owner. Marital property, on the other hand, is subject to division according to the principle of equitable distribution. This means that the property is divided between the spouses according to what is “equitable,” or fair. While in some cases this results in marital property being divided equally, in many cases it does not.

Instead of dividing marital property equally between divorcing spouses, judges in Georgia family court will examine a variety of factors in order to reach a conclusion about how to divide the property fairly, including each spouse’s financial and nonfinancial contributions to the marriage.

Beware of asset concealment during divorce

Unfortunately, it is relatively common for spouses to try to unfairly influence the outcome of the property division process by hiding assets. One of the most important ways that divorcing spouses in Georgia can protect themselves from asset concealment during divorce is to pay close attention to their finances and be on the lookout for potential warning signs of asset concealment, such as:

• A spouse acting secretive or defensive about financial matters and refusing to share passwords or other account information.
• A spouse taking on unusual amounts of debt or opening multiple bank accounts.
• A spouse complaining about unusual financial difficulties.
• A spouse whose expenditures seem out of proportion with his or her claimed income.

What are the steps involved in the division of property?

There are four basic steps to property division:

1. Inventory: The first step is to inventory all of the assets and liabilities for each party to disclose to the other.
2. Valuation: It is important to determine the value of the various assets and debts in a divorce. Knowing what each item is worth helps in determine how to split up the various assets and debts in a manner that is most equitable.
3. Classification: Once all of the assets and debts are accounted for, the next step is to determine for each asset (or debt) whether it is considered marital or separate. Although there are exceptions and qualifications, generally speaking something acquired before the marriage is considered premarital and something acquired during the marriage is considered marital. The importance of this distinction is that only marital assets are split in the divorce. Individual assets generally stay with the separate and are not subject to asset division pursuant to a divorce.
4. Division: Finally, the assets are divided. Whenever possible, it is often best to work through these issues in negotiation and mediation rather than having the court make these determinations. By working out these issues outside of the courtroom, couples retain a greater measure of control and flexibility to come up with an asset division agreement that is favorable for everyone involved.

Some challenges in dividing assets

• Retirement accounts: Individual retirement accounts (IRAs), 401(K)s and similar accounts can be extremely difficult to divide. With compounding interest and the changing principles that result make it difficult to determine accurate values and amounts spouses would be entitled to receive. These determinations require the help of an experienced lawyer and often the help of forensic accountants, as well.
• The family home: The family home is a significant challenge to divide in divorce for a number of reasons. There are often personal attachments, memories and emotional connection to one’s personal residence. Further, there are numerous ways to divide the house, including selling and splitting the equity, having only one spouse live there permanently or having the children live there and the parents rotate in and out during their respective parenting times.
• Dividing businesses and professional practices: Dividing business and practice assets and debts can present a number of challenges, especially when these are successful and both parties want to keep the businesses going.
• Debt: We will talk more about dividing debt in a future post, but significant complications arise in determining how much of the debt should be considered marital property and how much should be considered individual debt. These determinations are based on the time the debt was incurred and other factors. It takes knowledge and experience to properly divide debt in a divorce or separation.

Contact a lawyer for help

To ensure that property is divided fairly during divorce, it is essential that all separate and marital property be properly accounted for and categorized. Divorcing spouses in Georgia are encouraged to contact a knowledgeable divorce lawyer who can help them protect their interests and negotiate on their behalf for an optimal property settlement.