If you are considering a divorce, you probably have a lot of questions; that’s natural. After all, you are facing some big unknowns. One of the biggest questions we hear from our clients is whether the couple’s assets will be divided 50/50 between the spouses after the divorce. The short answer to that question is “it depends.”
It can take some work for your divorce attorney to evaluate all of the assets you and your spouse have accumulated, and to make an educated guess based on that evaluation. Even then, distribution decisions may be left to the discretion of the court.
The knowledgeable, skilled family law attorneys at Kitchens New Cleghorn, LLC in Atlanta have helped many clients through all aspects of divorce, including property division, helping to ensure treatment is both reasonable and equitable, based on the clients’ specific circumstances.
What Georgia Law Says about Atlanta Property Division
The treatment of certain assets may ultimately need to be determined by the court. However, the good news is that Georgia law provides a framework for handling the division of assets in a divorce.
In Georgia law, there is a distinction between “marital property” and “separate property.” How an asset is classified will determine whether it belongs to one spouse or is instead subject to equitable division. Essentially, assets classified as one spouse’s “separate property” will stay with that spouse after the divorce, while “marital property” assets will be divided equitably instead.
Understanding Marital Property and Separate Property
Because marital and separate property are treated differently, knowing the difference ahead of time can help avoid issues during your divorce.
Any asset either you, your spouse, or both of you acquired during the marriage through work or other efforts are considered marital property. This may include things like:
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- A home, cabin, rental property, farm, or other real estate purchased during the marriage.
- Cars, trucks, boats, campers, motorcycles, airplanes, and any other vehicles purchased during the marriage.
- Bank checking, savings, and money market accounts funded during the marriage (whether owned jointly or individually).
- Retirement accounts funded during your marriage, regardless of which spouse’s name is on the account.
- Stocks, bonds and other investments, whether owned individually or as joint tenants.
- Business interests in a corporation, limited liability company, or partnership.
- Your income and your spouse’s income earned during the marriage.
- Personal property purchased or acquired during the marriage.
- Pets purchased or adopted during the marriage.
- Gifts you received as a married couple during your marriage.
- Gifts you gave to your spouse, or received from your spouse, during your marriage.
The same is true for debt incurred during the marriage in Georgia. Any mortgage or credit card debt you or your spouse acquired during the marriage will generally be considered marital property as well.
One of the biggest misunderstandings clients often have is assuming that because an asset was titled in their name only (or in their spouse’s name only), that the asset was not marital property. The name on the account actually doesn’t matter; timing plays a more important role than titling.
While from the preceding section it may sound like everything is marital property, there are some notable exceptions. The following items will typically enjoy treatment as separate property, not subject to equitable distribution in a divorce:
- An inheritance received by one spouse alone (whether received before or during the marriage).
- Gifts one spouse receives from someone other than their spouse during the marriage.
- Personal property each spouse brought into the marriage. This may include things like vehicles, jewelry, electronics, pets, etc.
- Investments or bank accounts brought to the marriage by either spouse, and the growth on those assets during the marriage (although new investments or deposits during the marriage, and the growth on such new investments, would be considered marital property – not separate property).
- Other assets brought into the marriage, maintained as each spouse’s separate property during the marriage.
These items of separate property may seem fairly straightforward at first glance. However, there are situations where their treatment is not as clear cut as you might think.
For example, if one spouse inherited a sum of money during the marriage but put it into the couple’s joint bank account used for everyday expenses and bills, that inherited money may instead be treated as a marital asset. A forensic accountant may be able to help protect the separate property nature in that case by attempting to track and trace the money, accounting for marital expenditures and growth.
What About Prenuptial and Postnuptial Agreements?
When spouses sign prenuptial or postnuptial agreements, these can be helpful in identifying which assets the couple intended to be treated as marital property (if any.) These types of agreements can make property division easier and less contentious.
“Equitable” Does Not Mean “Equal” in Atlanta Property Division
It is important to understand that “equitable” distribution of marital property means “fair,” but that does not necessarily mean that an equal 50/50 split will occur.
Family law courts in Georgia have broad authority to distribute assets in whatever way they deem fair and appropriate, given the unique circumstances of each case. The factors considered will vary from case to case. However, some of the things the courts will consider when making decisions about equitable distribution include the following:
- What separate property assets each spouse is keeping.
- Each spouse’s financial status.
- The behavior of each spouse during the divorce proceedings.
- Whether there is any evidence of “marital waste”.
- Each spouse’s perceived future need for assets.
In the case of a marriage due to adultery by one spouse, the court may award the other “innocent spouse” more in the property settlement.
When You Need a Divorce Attorney, Rely on Kitchens New Cleghorn, LLC
As you can see, property division during a divorce in Georgia can be complex and nuanced. The family law lawyers at Kitchens New Cleghorn, LLC understand Georgia law in this area, and have experience applying it to help clients obtain property settlements that are truly equitable.
To schedule an initial consultation with a divorce attorney, contact us online today, or call us at 404.996.0806.