One of the main sources of stress during a divorce is the division of assets. Georgia is an equitable distribution state, so courts are not required to divide marital property or debts in an equal monetary amount. Instead, the law allows the judge the discretion to distribute property between the parties in a manner that seems just and fair. Not only do parties want to divide the marital property in a way that seems fair, but sometimes a party wants to protect his or her non-marital assets.
Marital property includes assets acquired during the marriage, enhancement in value and appreciation of non-marital assets, interspousal gifts during the marriage, real and personal property held as tenants by the entireties, and certain retirement benefits. On the other hand, non-marital property includes property brought into the marriage by either party that does not meet the standard of marital property.
Property acquired during the marriage by either spouse through inheritance, bequest, or devise remains the separate property of the spouse that acquired such property. Therefore, the general rule is that inheritance is not subject to an equitable division during a divorce proceeding. However, under certain circumstances, an inheritance may be considered marital property and therefore subject to equitable division.
First, the inheritance may be considered marital property if it appreciates in value during the marriage and that appreciation in value is caused by the efforts of either spouse or both. If this is the case, then the appreciated value of the inheritance would be subject to equitable division.
Next, if an inheritance is commingled with other marital assets, it may be viewed by the court as marital property. Therefore, if you are receiving an inheritance during the course of your marriage and you wish to protect this property from division upon divorce, it is important that you take certain steps to ensure that these funds are not blended with any other marital asset. For example, if you inherit a sum of money and then keep that money in a separate deposit or investment account, labeled only in your name, such inheritance is likely to be viewed as your separate property upon divorce. Thus, this property will be treated as non-marital property and will not be divided between you and your spouse during a divorce. But, if you take that same inheritance and instead deposit the funds into an account held jointly with your spouse, or if you use these funds towards the marriage, a marital investment, or any other joint venture, it is likely that this inheritance will be viewed as marital property upon divorce and therefore subject to an equitable division.
If you are contemplating a divorce and are concerned about protecting your assets, please contact the attorneys at Vayman & Teitelbaum. Our experienced team will investigate the aspects of your individual case to help decide what will be considered marital and non-marital assets. We will fight to protect your assets and the resolution of an equitable distribution.