If you’re going through a divorce, community property laws will affect property division. Georgia marital property laws exist to help facilitate this division of marital assets during a divorce.
Is Georgia a marital property state?
Georgia is not a community property law state but rather a marital property state. This means that during a divorce the law gives both spouses equal division in any property acquired during the course of the marriage. This is referred to as an equitable distribution strategy.
Property Division in Georgia
Under this strategy, there are specific rules to determine which assets are marital, which assets are community property, and which assets are separate. The ability to discern what is marital and what is separate is very important in a divorce case because marital property is equally divided between the two separating spouses, but each spouse retains separate property if they are the original owner.
Georgia marital property laws for marital and separate property
As a rule, in the state of Georgia any property either spouse acquires during the course of their marriage, no matter who has the title to that property or full ownership of that property, it is marital property. That means anything acquired during the course of the marriage is subject to an equitable division.
- Retirement accrued during the marriage
- Assets and debts like investments or loans
- Business assets
- Gifts one spouse gives to the other
Separate property includes things received as gifts from anyone other than the spouse, third-party inheritance, or something that a spouse acquired before marriage.
Premarital agreements and divorce laws in Georgia property
Some married couples can sign a premarital agreement prior to the marriage. If there is a premarital agreement, it needs to have carefully worded language so it will legally hold up in court. The purpose of these agreements is to outline what assets are separate, even though acquired during the course of the marriage.
For example, John and Jill sign a premarital agreement stipulating that any and all business assets associated with the family business John will run at some point during his life will remain separate. As long as the wording is legally binding and both parties have signed it, it can hold up in court. So, if John and Jill get married and three years later, John’s father gives him the business, and John further acquires multiple assets and investments directly because of his ownership in that business, the court cannot divide those assets and profits.
What If It Isn’t Clear What Category the Property Fits Into?
According to marital property laws in Georgia, if there is not a clear agreement between the parties, then the court (meaning the judge) gets to make the final decision about what property is marital. The courts cannot legally transfer a title of property from one spouse to the other spouse. Instead, what they can do is award monetary settlements just as in a civil case. This means the court can decide to award money to one party from the other in the amount of whatever the property’s value.
For example, If spouse A has a house in their name. The court decides that the house is marital property. However, the court cannot make spouse A give up the deed to the house. So, instead the court makes spouse A give money to spouse B in the amount of half the house. Now, spouse A must come up with that money however they can, whether it is by selling the house and splitting the proceeds or paying for it some other way and keeping the house.
When parents separate, and there are children under the age of eighteen involved, child custody and child support orders are usually d...
State of Georgia marital property laws for items both spouses paid for
Now, if there is something both parties purchased with separate funds, the court decides the percentage that goes to each spouse based on their contribution.
Using the example above: If spouse A put down 70 percent of the money for a home and spouse B put down 30 percent, then the court will likely decide that in the event of a divorce, property acquired together is not divided equally but rather, one spouse gets 70 percent (what they put down initially) while the other spouse gets 30 percent.
In these unclear situations, the court will take into account things like:
- How much money or other contributions were put into the well-being of the family. This might apply to either spouse if one spouse focused on homemaking and raising children while the other worked outside the home. It might equally apply to one spouse who paid for the other to go to school, or one spouse who brought into the relationship an inheritance or money they had already saved since before the marriage.
- The current circumstances of the divorce case. For example, the courts might decide that an equitable division of marital assets is not appropriate in cases of adultery or desertion. Now, according to state laws, being at fault for a divorce is not reason enough to be denied equitable distribution, but it will still have a significant impact on the case.
- The court will consider the length of the marriage and how intertwined the economic status of the family. A law firm might decide that because each spouse maintains a separate bank account and non-marital property, that having separate property and jobs means both parties can leave the marriage and still earn an income and maintain a good standard of living.
Overall, because Georgia is a marital property state, the court will divide any and all property that does not fall under a premarital agreement or other extenuating circumstances in the event of a divorce. How that is divided is based entirely on what the judges believe is fair, given the circumstances of the case. The judge will review the earning capacity and income of each spouse, the assets and financial status of each spouse, the conduct toward one another, whether there is alimony and future needs. Having a good attorney can help you protect separate assets in the event of a divorce.