In a divorce, all personal property and real property is divided between the two spouses. In Georgia, the laws that govern this process are rooted in the law of “equity,” or fairness. Equity, however, does not always mean half, and not all property is subject to equitable division.
What is the difference between “separate” and “marital” property?
In a divorce, only property that is considered “marital” property is subject to equitable division, so the first step when determining what property is subject to equitable division is to determine what is “marital” property and what is “separate” property. Marital property is property that is acquired during the course of the marriage. Separate property is property that is owned by one spouse prior to the marriage, acquired through inheritance or gift from a third party, or excluded by a valid agreement between spouses. Property that is owned by one spouse prior to entering a marriage is not considered “marital” property unless it becomes marital by way of marriage. For example, if one spouse owns a home prior to the marriage and transfers title to the other spouse during the marriage or the other spouse contributes to the upkeep or mortgage of that home during the marriage, then that property may then be considered marital for purposes of equitable distribution. Another example would be if one spouse owns an investment account prior to the marriage, and that investment account grows in value during the marriage by way of further investment using marital funds, then the increased value of that account may be considered marital for purposes of equitable distribution in a divorce.
What if it is unclear whether property is separate or marital?
In cases where it is unclear whether a certain piece of property is considered separate or marital, the court will typically determine what percentage of the value of the property is separate and what percentage is marital, and the percentage that is marital will be subject to equitable division. For example, if one spouse purchases a car with separate funds and later purchases upgrades for the car with marital funds, then the value of the upgrades to the car would be the marital property that is subject to equitable division. While courts cannot transfer title of property from one spouse to another, the court can award monetary benefits to the other spouse as compensation for their equitable share of the percentage of the property that is marital.
If the property is considered marital, does that mean my spouse gets half?
Equitable does not mean equal, or half. Equity is what is considered fair. Property that is determined to be marital can be divided unequally between spouses, and courts in Georgia may take several factors into account when determining the amount to award to each spouse in a divorce, including:
- The duration of the marriage
- Each parties' contribution, both monetary and non-monetary, to the marital estate and family
- The economic status of each spouse at the time of the divorce
- The circumstances and facts that contributed the parties' separation
- Each spouse's individual income earning potential
- The value of each spouse's property interests
- The circumstances under which property was acquired.
Equitable division can be tricky and is often the most stressful part of a divorce. It's important to plan for property division in the unfortunate event of divorce both before and during your marriage, like entering a valid prenuptial agreement prior to your marriage or simply communicating with your spouse about it and reaching an agreement.