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Property Divison in Divorce

equitable_division_of_property.jpgAs with any court case, the average person can be intimidated with all of the legal terms and jargon. In divorce cases, an often confusing term used is Equitable Division of Marital Property. What exactly does that mean and how does it affect a divorce case?

The first misconception about equitable division of martial property is that property is “equally” divided. The term actually refers to the division of property that the court deems as fair. The first step to equitable division is for the court to determine exactly what is deemed to be marital property and what is to be treated as the separate property. This is an important step because marital property has to be divided between spouses but separate property is not; spouses keep their separate property after divorce. The distinction between the properties is usually dependent upon the facts and circumstances in each individual case.

Marital property is typically acquired during the course of the marriage and is subject to equitable division rules. Once the court determines the property that is marital, the courts must determine how the property is to be divided. The following factors are usually considered when decided what would be the fair division of marital property in Georgia:

  • the separate assets and financial status of each spouse;
  • the income and earning capacity of each spouse;
  • the conduct of the spouses towards each other during the marriage, including during the divorce;
  • any wrongful conduct that resulted in a dissipation (waste) of assets by either spouse;
  • the future needs of either spouse, including retirement planning; and
  • each spouse’s debts.

Separate property is typically defined as any property acquired before the marriage or acquired during the marriage via a third-party inheritance or gift. To prevent future claims to inheritance or gifts, do not comingle separate property & marital property. Protect your separate property from becoming marital property by keeping the assets separate from marital property. Property acquired during the marriage belonging to a child of the marriage is not considered martial property. Gifts that spouses give to each other DO NOT fall in this category, they are considered marital property.

Divorcing spouses may resolve the terms of their divorce by negotiating and entering into a written settlement agreement memorializing their terms. Although entering into a divorce settlement is often the preferred way to resolve a divorce, it's not always possible for spouses to agree on every aspect of their case. If they cannot resolve all of the issues, they will have to ask a judge to make decisions for them. Going to court can end up being quite expensive, because a contested divorce can take many months or even years to resolve.