Equitable, Not Equal: How Property is Divided in a Georgia Divorce

Posted by on June 26, 2017 in Blog | Comments Off on Equitable, Not Equal: How Property is Divided in a Georgia Divorce

By the time a marriage deteriorates to the point of divorce, both spouses usually have accumulated a lot of baggage – and property. From furniture to vehicles to pensions to the martial home, all of the assets that were acquired during the course of a marriage must be allocated between the spouses as part of a Georgia divorce. Ideally, the parties and their divorce attorneys reach a negotiated resolution as to the division of property and assets between them. When that doesn’t happen, however, a judge or jury will  get involved and do the job instead. They’ll do so by applying the principle of “equitable distribution.”

As a preliminary matter, it is important to note the distinction between “equitable” and “equal.” If property were divided “equally” in a Georgia divorce, it would be a fairly simple exercise; split the assets 50/50 and everybody is on their way. But distributing property “equitably” can be significantly more complicated and contentious and involves numerous factors that a judge will weigh when deciding who gets what. What is fair for one is not fair for all.

Marital Property v. Separate Property

The first step in the process is determining what assets are “marital property” and what assets are “separate property.” Equitable distribution only applies to property acquired during the marriage, with a few exceptions.  Property each spouse brought into the marriage is considered separate property.  Also,  where one spouse obtained property by gift or inheritance during the marriage in his or her sole name is “separate property.”  Although there are exceptions, separate property will not be reallocated, divided, or distributed to the other spouse.  Such exceptions, however, include: sweat equity (the labor forces of one spouse improving the equity of another spouse); gifting the separate property to the other spouse (i.e. depositing an inheritance into a joint bank account); or converting once separate property into joint priority (i.e. using inheritance to improve a marital residence that is titled jointly).

Factors Considered in Equitable Distribution

In the absence of an agreement between the spouses, a Georgia judge will evaluate numerous factors set forth in Georgia law when deciding how to allocate assets and property between the spouses.  For example, if both parties have similar incomes and a similarly separate estate, the Courts almost always divide the marital estate 50/50. However, in a situation where one party earns substantially less than the other, the Courts often shift a large piece of the marital pie to the lesser earning spouse. The Courts are often persuaded to divide an estate 75/25 because of the ability of the higher earning spouse to replenish his or her estate post divorce. Also, if one of the spouses has a large inheritance that is separate property, the Court will consider the same when dividing the estate. Lastly, the Court looks at “bad behavior” when considering what is fair. Examples of bad behaviors are: adultery, gambling, domestic violence and such.

What About the House?

For many couples, the marital home is is the largest asset and it is emotionally resonant. Usually it is a symbol for the life they hoped to build and a start to the new family.  While every case is different, how a marital home will ultimately be treated depends on each couple’s unique circumstances.  Typically a judge will attempt to determine the amount of equity in the property and divide that amount between the parties. If the home is to be retained by one of the spouses, adjustments and buyouts can become part of the equation.  Be aware of refinancing home. Often times fathers want to allow the mother to stay in the home and raise the children, but people are unaware how difficult it is for a lower income person to refinance a home into his or her name.

Call the Alpharetta Divorce Lawyers at North Metro Litigators Today

As with all aspects of divorce, the division of property can be complex and raise intense emotions. Understanding how the process works and knowing your rights is crucial, as is retaining experienced and insightful counsel who can help guide you through these difficult issues. The Alpharetta divorce lawyers at North Metro Litigators provide effective and compassionate divorce representation at a reasonable cost. Call us today at (678) 944-0000 or contact us to arrange for your free initial consultation.