Because Georgia follows the equitable distribution or division principle when dividing assets in a divorce, a divorcing couple must divide their marital property in an equitable and fair way, regardless of which spouse owned or bought the property. Unlike states that follow the community property principle when dividing property between divorcing couples, using the equitable distribution principle does not necessarily lead to an equal distribution of assets between the spouses.
What is Marital vs. Separate Property?
Distinguishing between separate and marital property is crucial since the marital property would be distributed among the spouses, while separate property won’t be. Also, in most cases, spouses may keep their separate property following a divorce.
As a general rule, all assets that either spouse acquired during the duration of their married life, regardless of title, will be considered marital property and distributed equitably. Marital property typically includes the marital residence, motor vehicles, gifts between the spouses, each spouse’s retirement benefits, as well as other property and debts the couple acquired during the marriage.
On the other hand, separate property includes assets that either spouse acquired before marrying or assets gifted or inherited by either spouse via a third party, such as a parent or grandparent. Do note, though, that a premarital agreement is commonly used for designating a spouse’s property as separate property, even if acquired during the marriage.
Who Gets to Divide The Assets in a Divorce?
Divorcing couples can resolve all their divorce issues through a settlement, including property division arrangements. Otherwise, a judge can make the property division decisions for them. But unlike judges in community property states, judges in Georgia are not required to follow any predetermined formulas or rules for property division.
Judges will just have to ensure that they’re distributing the assets fairly and equitably based on the specific circumstances of the case. Common factors that judges use when making property distribution decisions include:
- Each spouse’s financial status and separate property
- Each spouse’s earning capacity and present income
- Any awarded alimony or spousal support
- The debts of each spouse
- Each spouse’s future needs, such as during retirement
- How the spouses treated each other during their marriage
- Any wrongful conduct by either spouse that led to waste or dissipation of their assets
What About The Marital House?
When it comes to deciding who gets to keep the marital house, judges will also use the above-mentioned factors. In most cases, however, the custodial parent, which is the parent who mainly cares for and lives with the kids, might have a significant advantage over the other parent. A deciding factor that judges commonly take into account is the requirement to provide the children a stable home environment following the divorce. This typically means that judges usually award the marital house to custodial parents when distributing property.
Seek Legal Guidance from a Skilled Georgia Divorce Lawyer Now
If you have any questions or want to learn more about how assets are distributed during a divorce, our experienced Georgia divorce lawyer can help. You can reach Banks, Stubbs & McFarland by phone at 770-887-1209 or online to set up your appointment.
Banks, Stubbs & McFarland, is the exclusive law practice on NewtoAtlanta.com in Cumming, GA. Banks, Stubbs & McFarland, is known for providing exceptional legal representation in the fields of Criminal Defense, DUI, Personal Injury, Auto Accidents, Wrongful Death, Divorce, and Estate Planning.