Many marriages end in divorce. If you’re about to dissolve your union, it’s important to understand how the process works. Divorce is relatively uncomplicated in Georgia, but there are a few things you should know, particularly when it comes to dividing property. Working with an experienced Georgia divorce attorney will help ensure you have the guidance and expertise necessary during this difficult time.
Understanding Types of Property
Georgia law recognizes two types of property when it comes to marriage and divorce: marital property and separate property. Each is treated differently.
Separate Property: Separate property is exactly what it sounds like – property owned by one spouse, but not the other. In most cases, this is property that the spouse owned before the marriage, whether that’s a home, a retirement fund, or something else. In some cases, property that was obtained during the marriage can also be counted as separate property, such as an inheritance that was willed to one spouse but not the other.
Marital Property: Marital property encompasses everything else obtained during the marriage, from cars to homes, regardless of whose name might be on the title. Under Georgia law, each spouse receives an equitable share of this type of property. Note that a prenuptial agreement signed before marriage can designate specific types of property obtained during the marriage as separate property.
Unsure how much separate property versus marital property you have? An experienced Marietta divorce lawyer can help you tell the difference and determine what to expect during the division process.
Why Does It Matter?
Why does the distinction between separate and marital property matter? Separate property isn’t usually divided – it remains with the spouse who owned it. Marital property is usually divided equitably. Note that “equitably” does not mean “evenly”, however.
Equitable vs. Equal
In divorce proceedings in Georgia, equitable does not mean equal. Instead, the court wants to make sure that both spouses have an equitable share of all property (and debt as well). So, one spouse may get the house, while the other spouse could get a car, a boat, and an RV – the total value of which would be equal to the spouse’s half of the home’s equity.
That said, it’s more about the judge’s determination of what is equitable that determines who gets what. After all, the judge is responsible for parceling everything out, including property and even debt.
What Is Considered During the Equitable Division of Property in Georgia?
A judge must consider many factors when determining how to divide property during a divorce. Some of the most important include the following:
· The financial status of each spouse, including earning capacity
· The separate assets of each spouse
· Alimony awarded in the divorce
· Wrongful conduct in the marriage that led to divorce
· Future financial needs of the spouses
· Marital and separate debt
The Potential for Asset Concealment
In some cases, one spouse may try to conceal assets during a divorce. They might believe that concealment will allow them to keep the asset, or that by concealing it, their financial situation is less than otherwise, resulting in a judgment that favors them.
This can involve things as blatant as attempting to hide physical assets like cars or boats, or less obvious concealment, like refusing to share passwords and account numbers. If you suspect your spouse might be attempting to conceal assets before property is divided, it’s important to work with an experienced Marrieta divorce attorney. An attorney can often spot signs of concealment, and then investigate the situation to determine the best course of action moving forward.
Will I Get to Keep the House?
One of the most common questions a Georgia divorce attorney receives is who will get the house in the divorce. Because Georgia is an equitable division state and not a community property state, the court uses a similar analysis for dividing the home as it does for the parties’ other property. Regardless of who keeps the home, however, the value of the home must still be divided equitably, just like the rest of the parties’ property. Certain factors can give one party an advantage when it comes to keeping the home, and one of the most important of these factors will often be which party is the main custodial parent (if there is one). There is a strong argument that can be made that the custodial parent should be the party who remains in the marital home after divorce.
If there are no obvious factors that favor one party over the other, and the parties cannot come to an agreement, the court can ultimately order that home be sold. It is important to remember that if both parties have signed the mortgage for the home, the party keeping the home must normally refinance the mortgage to remove the other party’s name and legal responsibility.
Questions about Property Division in a Georgia Divorce? Get Expert Help from a Marietta Divorce Lawyer
Are you facing the prospect of a divorce? Whether you’re concerned about your spouse concealing property or just want to make sure that everything is divided equitably, an experienced Marietta attorney can help. Contact us today to schedule your free consultation and to learn more about the divorce process in Georgia and what you can expect in your case.