Ask any divorce attorney and they will tell you the two things that just about everyone worries about in a divorce are money and children. You might not have to go through a draining custody battle, but you certainly will have to figure out how to separate the marital assets.
Regardless of the length of your marriage, it’s probably a safe assumption that your property has become entwined. Very few married couples keep everything separated in case of divorce. So, when it comes to your marital property (any assets), Georgia requires an “equitable division”, a fair division. Notice this does not mean an equal split -- don’t count on a 50/50 split of all property. Equitable division means it’s fair to both parties. Get ready to hash this out!
Here are some key things you need to keep in mind as you prepare to split your marital property.
Before you got married, you probably had some property or financial assets all of your own. If you continued to keep that property separate, then it stays separate. Anything you owned before marriage is going to be yours and yours alone in the eyes of the court. If something was given to you personally as a gift -- even while you were married -- is still yours. If you have received it as part of an inheritance it is still yours. Any interest earned on an investment, or an increase in the value of a particular piece of property, is still yours as long as you owned it before marriage.
Once we take all of the separate property out of the mix, what’s left is marital property. So, everything that you owned together during the marriage is marital property. Anything that was separate property and changed ownership to reflect both parties is considered marital property.
This sounds simple but can get complicated very quickly. Imagine you have a checking or savings account with your local bank. Your spouse makes numerous deposits to that account even though it only has your name on it. Who gets this during the divorce?
In Georgia, anything jointly owned or contributed to is a mixed asset. Georgia law states mixed assets must be divided by the “source of funds rule”. You need to determine what percent of the account was contributed before and what percent was contributed after the marriage. However, the percentages worked out determines how the mixed asset will be split.
So, where does this leave your investment accounts, such as HSA plans, stocks, and bonds? What about your retirement accounts, like your 401k or your pension/IRA? Again, think about what the balance of these accounts were prior to marriage. That balance is separate.
However, any contributions made by either party to any of these accounts while married is considered marital property. Even balances that are unvested in a pension are considered joint marital property.
Due to equitable division rules, all of retirement and investment accounts may not be split 50/50. The court will look at the financial circumstances of both spouses and what other assets are being awarded. The primary contributor to a particular account could get to keep all the money in that account.
Another issue adding to the complexity of retirement and HSA accounts is the penalty for an early distribution of income. Your divorce attorney will need to present to you your financial options. One option is rolling over portions of an account into an account set up for your spouse. This avoids running afoul of financial regulations governing payouts.
Equitable distribution applies even if the deed reflects the name of only one spouse. That’s a common mistake for divorced couples. The division into married or separate is relatively simple. It's based on when the real estate was bought, not whose name it was bought under.
You have three basic options when it comes to real estate and other valuable items. First, you can buy out the other spouse for their equitable share. Second, you can agree to share the item. Finally, you can sell the item and split the proceeds. Negotiation is the key here. If you are bent on keeping a particular asset, be prepared to give up something of equal value. Things have to be fair!
If the car was bought before the marriage, it’s separate property. If the car was bought during the marriage, or marital assets were used for improvements it's considered marital property. Any marital property need to be split as part of a divorce agreement.
The vehicle in question should be appraised in terms of value on the day of the separation. We’re talking about current value, not the value of the car when it was bought brand new 15 years ago.
When it comes to vehicles, as well as any other transportation mode, such as motorcycles, work trucks, boats, etc., you need to discuss with your attorney the appropriate value of each vehicle, and let them know who primarily uses each as well as what vehicles you feel you want to keep ahold of. When it comes to transportation, it often requires tradeoffs and accurate assessment of values to make sure that equitable distribution guidelines are met.
You may have invested in a timeshare. This is an interesting conundrum for couples who are divorcing for three reasons. First, in most divorces, neither spouse wants to keep the timeshare. Second, it’s near impossible to try and sell one. Third, when it comes to equitable distribution, timeshares are notoriously hard to value, especially given that they tend to depreciate over time.
With a timeshare, you still have the basic three options that you do for most tangible property. You can sell the timeshare and split the proceeds. You can agree to share the timeshare and continue to use it. Or, you can buy out the interest in the timeshare from the other party.
It is not uncommon to see a couple where one spouse had the primary “bookkeeping” responsibility. This means that one spouse is the “out spouse”, the one who doesn’t have a full and comprehensive picture of all the financial dealings in the household. This could lead to accounts or other valuables not being listed on a marital asset sheet.
During a divorce hearing, there is a discovery process, a formal process by which the court can uncover key documents and financial records. An attorney can even ask to personally inspect key assets, such as a storage garage or a wine cellar. The court can compel each spouse to come clean and reveal all hidden assets or risk being held for non-compliance.
When the judge is making a ruling about equitable division, it’s not just about the division of marital property. It’s also about debts. Given that Georgia law does not require a 50/50 division of assets, it also doesn’t for debts, meaning one spouse may end up with more than half of the marital debt load if they aren’t careful or don’t have good representation.
Judges in Georgia have two basic ways of assigning debt. Perhaps the easiest is just to assign certain debts to certain spouses for payment. Remember, divorce courts in Georgia are only concerned about debts incurred after marriage. If you had a credit card before you got married and it’s in your name only, you’re still responsible for paying it. The principles of separate vs. marital property apply to debts as well.
The other way that Georgia judges can divide the debts is to tell each spouse the percentage of each debt they are responsible for paying. Of course, with strong representation, it is certainly possible to utilize a portion of assets to pay off a portion of debts. It very well may end up that the debts have to be negotiated just as the assets do.
When you’re thinking about money, the most important date to remember is the date the money was earned, not the date the money was distributed. For example, imagine a case in California (Rossi vs. Rossi).
In this key divorce asset case, the wife went in on a lottery pool at work and won a little over a million dollars. She filed for divorce a month later, without telling her husband she had won and before she had actually received a check from lottery officials. After the divorce, the husband found out about it and requested a revised settlement.
Because the money had been earned while the couple was still married, the court found that it should be considered marital property, not separate property. Money earned before the date of the final order of divorce is marital property! In this particular case, you may think the husband walked away with half the money. No, he actually got all of it because the wife had attempted to fraudulently conceal it during the marriage and divorce trial.
By now, you probably realize there’s a lot at stake when it comes to assets in a divorce. Equitable distribution of property doesn’t mean a straight 50/50 split, but it does mean that the judge is tasked with approving a settlement that is as close to “fair” as the Court can get.
Failure to be honest about assets can result in some very serious penalties. Divorce settlements can be reviewed by the court even after the divorce has been finalized. There are all kinds of civil and financial penalties that can be accrued by the guilty spouse, not to mention the possibility of jail time for perjury.
If you are involved with a divorce case and there are significant assets (or debts) involved, you need to hire an experienced attorney who can navigate through the complex minefield of financial divorce settlements. Trying to go it alone in court, or trusting that your spouse will “do the right thing” is a sure-fire recipe to get shortchanged on assets or incur more of the marital debt than you rightfully should.
At Family Matters Law Group, we have years of experience working with divorce settlements. Finding hidden assets and unthreading years of marital contributions to various accounts is one of our specialties. If you’re ready to discuss your marital finances in detail as part of the resolution of your divorce settlement, contact us today and let us hear your story. We are ready to help!