One of the most common questions clients have during a divorce relates to what is marital property and how it will be divided. While this varies on a case-by-case basis, generally marital property is divided and distributed, and separate property is not. Here are some things to know about the legal terminology and processes involving the division of property in Georgia divorces.
Separate Property vs. Marital Property
In Georgia, like many other states, there is a difference between separate property and marital property.
What is Separate Property?
Separate property is owned by an individual spouse, separate from their partner. During a divorce, Georgia divorcees should keep their separate property during a divorce. However if separate property is comingle with marital monies, it may be difficult to separate it out later if there is a divorce. For example if you inherited money and deposited into the joint bank account and used the funds to upgrade the marital home, you have comingled the monies.
Some examples of separate property include:
- Assets acquired before the marriage
- Gifts from others, not including the spouse
- Inheritances
Premarital Agreements
Premarital agreements can keep property that would normally be considered marital property separate during a divorce. However, premarital agreements must be properly written to be enforced. If you need help defending your premarital agreement during a divorce, contact a Savannah divorce attorney for assistance.
What is Marital Property?
Marital property is any property acquired by either spouse during marriage. This includes:
- Real estate
- Cars
- Gifts between spouses
- 401(k)s
- Other financial assets
- Accumulated debt, though not an asset, is subject to equitable division as well
Marital property must be divided between spouses during a divorce.
Does the State of Georgia Recognize Community Property?
Georgia is not a community property state. In a community property state, any property or asset you acquire during a marriage is community property and each spouse owns 50% of it. When you divorce, each spouse is entitled to half.
However, Georgia operates under equitable distribution laws. This means that there may not be an equal division of property during the divorce but rather a fair division based on factors unique to the couple’s situation and fair to both parties Property is divided not equally but fairly.
Factors that Impact Division of Marital Property in Georgia
No two divorces are quite the same. There are many factors that can have an impact on how marital property is ultimately divided. These factors include:
- Separate assets owned by each spouse
- Need for Alimony
- Income of each spouse
- Conduct of each spouse
- Future needs of each spouse
- Accumulated debt
Who Gets the House During a Divorce?
Since Georgia is not a community property state, the house isn’t sold and distributed 50/50 to each spouse. Instead, a decision is made on who gets to keep the house. It may be decided that the spouse who will be primarily caring for the children, be given the house so there is less impact or upheaval for the children. Or it may be decided that the home should be sold and the value of the sale be distributed equitable between the couple.
If either spouse cannot afford to live on their own income in the house, it may determine that the house must be sold. Then each person would set up their own individual household.
Does Property Division Require Going to Court?
In Georgia, you do not need to go to trial/court to have a judge decide for you how to divide marital property. You can opt to enter into a written settlement agreement during a mediation. Mediation is where the parties and their attorneys meet, and with the help of a mediator, negotiate the division of the marital property as well as other issues such as custody and spousal support. If the parties are unable to come to an agreement, then they will need to go to court to have a judge decide.
Hiding Assets During Divorce
Sometimes one spouse may try to unfairly impact their share of property or assets during a divorce. They may try to hide assets so that the court cannot distribute property fairly.
Here are some signs that a spouse could be hiding assets:
- Defensive behavior when asked about personal finance
- Refusal to share account information and shared passwords
- Opening multiple new bank accounts
- Acquiring large and unusual amounts of debt unexpectedly
- Complaining about financial difficulties
- Spending more money than the spouse supposedly earns
If you notice any of these behaviors, it is important that you let your attorney know right away.
Contact a Savannah Divorce Attorney Today
Divorce is the end of a partnership and dividing property is an important step in completing the process. Be sure to keep good records of all assets and any actions your spouse takes that seem unusual or out of place given the financial situation. A good divorce attorney should help you determine which assets are marital and what a fair or equitable division might be.
Contact the law firm of Phillips Carson Phillips for your divorce. We have experience helping couples get through this difficult time. Contact us to schedule a consultation by calling (912) 232-0081 or using our online contact form.