The division of property during a divorce in Georgia focuses on marital assets and separate assets. Georgia is not alone in this approach.
However, it’s not always easy to distinguish whether an asset should be classified as separate or joint. Generally, marital property will be divided between the spouses while the party who owns separate assets will be permitted to keep them.
Deciding whether an asset is marital or separate may be tricky. Separate assets are usually those that were acquired by a specific party before entering the marriage. Property acquired during a marriage is classified as marital property. This is a general rule and there are exceptions.
For instance, an inheritance to the husband or the wife may be considered separate property even if it occurs during a marriage.
The 2008 case of Dasher v. Dasher provided an exception to the rule of thumb that property becomes a marital asset because one of the spouses obtained it during the marriage. Property acquired by one spouse via gift, bequest, inheritance, or device, may remain that spouse’s separate property.
Under Georgia law, the decision on which property should be marital and which property should be kept separate can be made by either a judge or a jury.
In some cases, property acquired before a marriage may be considered marital property. For example, if a husband owned a home solely before the marriage but the mortgage was paid off during the course of the marriage, the property may be classified as marital. The same argument could be used for a retirement account.
The separation of property into marital or separate property is the initial step in the division of property. The property then has to be distributed. Each spouse is entitled to an equitable share of the property. This is not synonymous with an equal share and there is no pre-set formula or percentage allocation. Instead, it is what a judge and jury deem to be fair in the circumstances. The equitable share model is only applicable to cases in which no prenuptial agreement was made.
Issues of marital assets and separate assets during a divorce can be very complicated and controversial. Property division may be one of the most bitterly fought parts of a divorce.
A Georgia family lawyer can help you sort out issues ensuring property division is a less painful process. Please contact us today for a consultation.