Property & Asset Division

Georgia Law:

Georgia is an “equitable distribution” state.  This means that all marital property acquired during the marriage should be divided equally.

The “marital” property, consisting of any other property acquired by either spouse during the marriage, will be divided equally unless the court finds that equal division would be unjust. Division of property does not necessarily mean a physical division. Rather, the court awards each spouse a percentage of the total value of the property.

Each spouse gets items whose worth adds up to his or her percentage. Any property possessed by either spouse during the marriage is presumed to be marital property unless it can be shown that the property is actually separate property. A court can determine the rights of the spouses in any pension or retirement plan or their rights under any insurance policy.

Equitable Distribution:

Assets and earnings accumulated during marriage are divided equitably (fairly).  In practice, often two-thirds of the assets go to the higher wage earner and one-third to the other spouse. It is common for a divorcing couple to decide about dividing their property and debts themselves, rather than leave it to the judge. But if a couple cannot agree, they can submit their property dispute to the court, which will then use state law to the divide the property.

NOTE: It is illegal for either spouse to hide assets in order to shield them from property division.

ASSET & DEBTS 101

ASSETS:

The term Asset is a fancy word for “stuff.”  Such stuff includes property, real estate and personal property (both tangible and intangible).  Property can include houses, pensions, businesses, coin collections, almost anything.  The process breakdown for assets and property division can sometimes be a very complex and complicated process. This is common in situations where couples have been in marriages for a long period of time or when there is a vast accumulation of assets during the course of the marriage. The adjacent chart provides an example of some of the assets that are considered marital property by the court system.

Process:

The first step is to find and value the property (equity in the house, value of pensions, value of antique furniture, or that collection

of beanie babies).  Next, you must determine whether the particular piece of property is separate property and remains with the person who owned it.  Separate property is usually acquired before marriage or outside the marriage such as by gift or from your very wealthy great aunt Mildred.  Conversely, marital property is usually acquired during the marriage.  Marital property can include increases in separate property that occurs during the marriage if your spouse contributed to its appreciation or preservation even if only indirectly.

 

In determining who gets what marital property, the court relies on the following equitable distribution factors to consider how the assets are divided during a divorce: 

  • Length of marriage;
  • Age, health, skills and abilities of the parties;
  • Contribution to the education or to the earning power of the other;     (the old…”I gave up everything so you could go to medical school!”)
  • Relative ability of the parties to acquire property in the future;
  • Contribution to the value of the marital property or the separate property;
  • Amount of separate property owned by each spouse;
  • Premarital property;
  • Financial conditions of each party;
  • Tax consequences;
  • Social security benefits;
  • Allowing the custodian and children to continue to live in the home permanently or for a period of time (most often until remarriage of the custodian or until the children turn eighteen); and
  • Other factors that the court considers appropriate

Who gets to live in the house during the divorce?
If children are involved, the parent who spends the most time with the kids, or provides their primary care, usually remains in the marital home with them. If you don’t have children and the house is the separate property of just one spouse, that spouse has the legal right to ask the other to leave.

If, however, you don’t have children and you own the house together, this question gets tricky. Neither of you has a legal right to kick the other out. You can request that the other person leave, but he or she doesn’t have to. If your spouse changes the locks, or somehow prevents you from entering the home, you can call the police. The police will probably direct your spouse to open the door. When you both own the home, the only time you can get your spouse to leave is if domestic violence has been committed and a judge grants a restraining order or temporary protective order (TPO). 

A Word of Warning: 

DO NOT HIDE ASSETS! These assets are usually found; and if they are found, you will look like a crook to the court. The judge will have trouble believing what you say about anything after that, and the judge will have less trouble assessing attorney fees against you for your behavior.

DEBTS:

Debts are the other side of assets, the bad side, and must be dealt with in a divorce.  If you cannot agree, then the court will generally consider several factors in dividing debt obligations.

Those factors include:

  • Who made the original debt?
  • For what purpose was the debt made?
  • Who received the benefit of the debt proceeds?
  • Who will receive as part of the division of marital assets the particular asset (if any) connected with the debt?
  • Who is better able to pay the debt?

Another Word of Warning:

Even if there is an agreement for one spouse to pay a debt that is in both parties’ names, there can still be problems with the debt.  If the party responsible for the debt does not pay the debt, the other party can still be sued for the debt.

LIFE INSURANCE:

The cash value of  life insurance is property.  If you are receiving alimony or child support, you will want life insurance on the payor to insure the payment, should the payor die.

"WORDS OF WISDOM"

DO:

Close joint accounts and notify the banks, charge cards, and others by a certified, return receipt letter that you are no longer responsible for your spouse’s expenses.  You may want the company to reopen an account in your own name.  Keep all related documentation for your records.

DON’T:

Cut off the utilities on your spouse and children without giving them plenty of notice.  Make sure you can prove this notice to the court because leaving your spouse and children home without heat or light in December seldom sits well with the judge.