Marital property is the property and financial assets that will be split during a divorce. In Georgia, marital property includes any wealth attained by either or both spouses during the course of the marriage. It does not matter which spouse earns more money or whose name is on the property. It includes financial accounts, physical wealth, household and personal possessions, real estate, and investments.
Georgia does provide exceptions for premarital property, inheritance, and some personal gifts. However, all other property between spouses is considered marital property and will be split equitably in the divorce.
The legal framework for marital property in Georgia is guided by the equitable distribution principle as per the state’s divorce laws. Under the Official Code of Georgia Annotated (OCGA) § 19-3-9, property acquired during the marriage is deemed marital property and is subject to fair and equitable division during divorce proceedings. Equitable division of property in Georgia does not mean equal division. The court considers various factors, including income, contributions, and separate property. Understanding and navigating these laws is crucial. Our team is here to offer professional guidance and support throughout the process.
Marital property in Georgia includes everything earned or purchased during the marriage. The income of both spouses is considered marital funds, a policy designed to protect homemakers and supportive spouses with lower incomes. Marital property includes:
Anything purchased or acquired during the marriage is included in marital property. This includes items and accounts used exclusively by one spouse, including retirement accounts, personal vehicles, expensive wardrobes, workshop tools, and even businesses founded by one or both spouses during the marriage.
Let’s consider a hypothetical scenario better to understand the division of marital property in Georgia. Suppose Alex and Jamie, who have been married for 15 years, decide to divorce. During their marriage, Alex founded a profitable tech startup while Jamie chose to be a stay-at-home parent, raising their two children and managing the household. They jointly purchased a home and two cars, and have significant savings and retirement accounts.
In Georgia’s equitable division of property, their assets would be divided fairly, but not necessarily equally. The court would take into consideration various factors such as Alex’s high income from the startup and Jamie’s contribution in raising their children and managing the household. Despite the startup being solely under Alex’s name, the startup would be considered marital property, as it was founded during the marriage. The court might award a higher percentage of marital assets to Jamie, recognizing the value of their homemaking contributions and to ensure financial stability post-divorce.
In contrast, consider a scenario where Jane and John, a couple married for 10 years, decide to separate. Jane brought a substantial inheritance into the marriage, which she kept separate in her own account. The couple also bought a house together and accumulated joint savings. In this case, Jane’s inheritance would not be considered marital property as it was separately maintained and not commingled with marital funds, and therefore, would not be divided upon their divorce. The house and joint savings would be considered marital property and divided equitably considering both John and Jane’s incomes and contributions to the marriage.
These scenarios are hypothetical and the actual division of assets in a divorce depends on various factors specific to each case. It’s recommended you seek professional legal advice to understand how laws will impact proporty division in your situtaion.
Georgia is an “equitable division” state. This means that spouses will be granted an approximately equal share of marital assets in the divorce, but it does not need to be an exact 50/50 split of everything. Instead, spouses are able to negotiate the most practical split by balancing an equal value of assets that each spouse leaves the marriage with.
For example, divorce attorneys typically recommend that each spouse keep their personal retirement accounts to avoid the penalties of opening them early. If one spouse has a bigger retirement savings, they can give the other a larger share of more liquid assets. Each spouse will likely keep their personal possessions, but if their car, wardrobe, or tool collection is of high value, they may offer the other spouse an equal value in furniture or money.
There are three types of property considered separate from marital property in Georgia
The approach to dividing marital property during a divorce varies significantly among states.
For instance, California, Nevada, and Texas are community property states, where all assets and debts accumulated during the marriage are considered jointly owned by both spouses and hence divided equally upon divorce. This contrasts with Georgia’s equitable distribution approach, where assets are divided fairly, not necessarily equally.
On the other hand, states like New York and Illinois also follow the equitable distribution model, similar to Georgia. However, nuances in how each state defines ‘marital property’ and ‘separate property’ can lead to different outcomes. For instance, in some states, the increase in value of separate property during the marriage may be considered marital property, while in Georgia, it remains separate.
Georgia’s approach is distinctive in its flexibility. The courts take into account a wide variety of factors (like each spouse’s financial situation, length of the marriage, and contributions to the marital property) to ensure the division is fair, despite not being equal. This custom approach, instead of a strict 50/50 split, makes Georgia’s marital property laws unique.
When it comes to divorce proceedings, it’s crucial to understand the specific laws in Georgia regarding the division of marital property. Below, we delve into some common misconceptions, supported by real-life examples from New Jersey, to illustrate how marital property laws can differ from state to state.
Example 1: Misunderstanding of Retirement Accounts
Distribution of retirement accounts is an often misunderstood asset. For example if husband, was a dedicated employee of a large corporation, and accumulated a significant sum in his 401(k) retirement account during the marriage. His spouse, a stay-at-home parent, mistakenly believed that they had no claim to this account since it was solely in their husband’s name. However, according to Georgia law, any wealth accumulated during the marriage, including retirement accounts, is considered marital property. This misconception was corrected, and the spouse would be able to receive a share of the 401(k) account in their divorce settlement.
Another example illustrating the misconception surrounding home ownership is the case where the husband’s name was the only one listed on the deed to the marital home, leading the wife to believe that she had no rights to the property. However, since the mortgage and maintenance costs were paid using joint marital funds during their marriage, the house was deemed marital property under Georgia law. Despite her name not being on the deed, the wife was awarded a portion of the home’s value in the final divorce settlement. This case further emphasizes that ownership rights in a divorce are not solely determined by the name on the property deed.
Although these examples are fictional, they serve to highlight the complexities and potential misconceptions surrounding marital property laws, which can arise in Georgia or any other state. It is crucial to seek legal advice when navigating the intricate landscape of divorce proceedings in Georgia.
Remember, these tips are general guidance. Consult your attorney for advice tailored to your circumstances.
There is one exception to separate property. If your spouse makes significant contributions or improvements to separate property, it may become marital property. For example, if your spouse restores a piece of heirloom antique furniture by hand or helps pay for renovation on a house you own separately, they gain some amount of ownership that will need to be balanced in value if you wish to fully reclaim the property.
Petrelli Previtera, LLC offers a range of resources on our website. These include articles, guides, and tools related to family law in Georgia, including answers to common questions about property division in Georgia, and the principles of Equitable Distribution State, 50/50 Property State, and Community Property State regulations.
We also provide resources on often overlooked assets and tips on negotiating a property settlement, to ensure you are fully prepared when tackling this complex issue. If you’re considering divorce in Georgia, we offer comprehensive guides detailing the state’s divorce process. Learn about the prerequisites to qualify for a divorce in Georgia and get answers to common questions such as “How long does a divorce take in Georgia?” and the costs to expect during a divorce.
The two most important factors of splitting marital property in a Georgia divorce are fairness and practicality. If you still have questions, our team in Covington, Georgia is ready to assist. We support clients in a range of family law issues from divorce, separation, and legitimization, to custody and modifications. Feel free to reach out to us for personalized advice and guidance. The family law attorneys of Petrelli Previtera, LLC can help you protect your separate property, accurately assess your marital property, and seek the ideal split of assets to build a successful life after your divorce. Contact us to consult on your unique circumstances and concerns.