One of the reasons why you should seriously consider hiring an experienced attorney before embarking on a divorce in Georgia is the prospect of getting bogged down in property division. During a marriage, your finances and physical possessions (including your house) become entangled, and it may take quite an effort to free everything up in a manner that you can live with.
Georgia bases property division laws on the principle of “equitable division,” which means that all property must be fairly divided. Notice this does not mean equally, so if you had visions of literally taking all the money and property and splitting it 50/50, you may find yourself disappointed. That’s probably not how this is going to work out.
In this article, Family Matters Law Group would like to educate you about a different way of thinking about your assets and property. Then, we’ll give you some food for thought that you can use to discuss your property division with an attorney.
What Counts as Marital Property?
Think about it: you had some property and financial assets before you got married, and during your marriage, you kept some things separate and other things got thrown into the mix as marital property. So, how do you split all those different categories up in an equitable division?
First, let’s remove separate property from this mix. Anything (property or financial asset) that you owned before you got married is still yours and yours alone. Anything given to you personally as a gift (even while married and even if your spouse gave it to you) is still yours. Anything that you received as an inheritance is still yours.
Finally, think about anything that you owned prior to marriage that was very valuable, or a financial account that you had before marriage. Any increase in value or interest earned on those counts as separate property.
There’s one catch to this: if you had separate property and changed ownership from just you to the two of you, it’s no longer just yours. It’s now marital property.
Once both spouses split out all the separate property, what is left is the marital property. This can get incredibly complicated. For example, let’s say you had a savings account in your name prior to getting married. That would be separate property. But, during the marriage, your spouse made quite a few deposits to that account. They’ve contributed, but their name is not on the account. How do you split that up?
Issues like that make it essential to hire an experienced attorney, who is not just versed in divorce law, but also specializes in asset division and recovery.
In Georgia, when you have mixed assets, the law states that the asset must be divided according to the “source of funds rule.” In essence, the court wants to know what percentage of that property was contributed by both parties and what percentage was contributed as separate property. By establishing percentages, the division will then be split accordingly.
Dividing The Marital Property
Once you have an idea about what the court considers marital property, the next step is to have all items appraised. You might need to hire a professional appraiser with physical property. In case of financial assets, a professional certified public accountant can begin to sort out who made what contributions to each account in question.
Obviously, from this point, the easiest way to go is to assign particular items to each person. However, some couples like to sell a bunch of stuff and split the proceeds. This is another time when the advice of an experienced attorney can help, especially if you are considering keeping a large asset (such as an investment account or house) in both parties’ names after the divorce.
Please understand that all marital debts also have to be split. So, as you consider the property, also think about the car payments, the mortgage, the credit cards, etc. Debts are also divided up, just like all other property.
We Can’t Work Out a Division. What’s Next?
If you can’t come to an agreement about an equitable division, then the court will do it for you, and Georgia has no set formula for how to accomplish that. The judge will make a decision and take many factors into account. These factors may include:
- How long the marriage lasted and the lifestyle that each spouse is accustomed to
- Contributions made by each spouse in terms of wages earned, parental contact, homemaking, etc.
- Value of all assets and physical property
- Future needs of each spouse in terms of income potential and future parental needs
- Needs of the children
- Incidental factors, such as, was one spouse making a good faith effort to split the marital property while the other was being exceedingly difficult
One other thing to think about here is that the longer your marriage lasted, the more equal the split of property and assets may be. If you were only married for a year or two, you won’t be as commingled as someone married for 25 years or more. Thus, the judge is going to try and split the assets in a way that restores you to the standard of living you had before you got married, versus the standard of living you had while married (in the case of the lengthier marriage).
Your Family Law Attorney Is Your Ally
As you can see, dividing up property and financial assets can be a very complex task. This becomes even more complex when the divorce is quite contentious. If you have a case where the property and finances are very intertwined, it is absolutely essential that you have an experienced Atlanta divorce attorney on your side.
Family Matters Law Group has extensive experience dealing with fair valuation of assets, property division, financial asset recovery (including locating hidden assets), and prenuptial agreements. If you are in Henry, Clayton, Fayette or any other metro Atlanta county, please contact us using our convenient online form. Your ability to move forward after your divorce is directly related to a fair property division. We stand ready to assist you with this very important task.
