Our Alpharetta Divorce Attorneys Master Divorce and Property Division

No, Georgia is an equitable distribution state. This means that the division of marital property aims to be fair, though not necessarily equal. In an equitable distribution, the court considers various factors, such as each spouse’s financial and non-financial contributions, the length of the marriage, and each spouse’s future financial needs, before making a decision on how to allocate assets. The goal is to reach a division that is just, based on the unique circumstances of the couple.

While adultery itself does not directly influence the division of marital property in Georgia, it can significantly affect alimony decisions. Under Georgia Code § 19-6-1, adultery may disqualify the adulterous spouse from receiving alimony. Since alimony and property division often intersect, a decision to deny alimony could indirectly alter how property is divided to achieve a fair outcome. For example, a court might adjust the property settlement to account for one spouse’s financial needs in light of their ineligibility for alimony.

In general, property that was owned by either spouse before the marriage is considered separate property and is not subject to division during divorce. However, if marital funds were used to pay the mortgage or make improvements to the home during the marriage, the increase in the property’s value may be classified as marital property. This could entitle your spouse to a portion of the equity gained during the marriage, even though the house itself remains your separate asset.

Debts in a Georgia divorce are divided using the same principle of equitable distribution that applies to assets. The court will look at several factors, such as who incurred the debt, whether it was for a marital or personal purpose, and the financial situation of each spouse. For instance, if one spouse took out a loan to support their business, they may be responsible for repaying a larger share of that debt. The division of debts aims to be fair, though not necessarily equal, and the specifics of each case are considered to determine an appropriate allocation.

In Georgia, inheritances are generally regarded as separate property, belonging exclusively to the spouse who receives them. Nonetheless, if these inherited funds or assets are mixed with marital property, like being placed in a joint bank account or used to acquire shared assets, they might forfeit their separate status and become divisible. To maintain their classification as separate property, it is advisable to keep inheritances in a distinct account and avoid blending them with marital finances.

A prenuptial agreement can significantly shape the division of assets during a divorce by outlining how property will be distributed, preventing disputes over ownership. In Georgia, a valid prenuptial agreement must meet certain legal standards to be enforceable, including full financial disclosure and fairness at the time of execution. If the agreement holds up in court, it can override the default rules of equitable distribution, making the property division process much more straightforward.

Retirement accounts, such as 401(k)s or pensions, are often considered marital property to the extent that they were funded during the marriage. The division of these accounts usually requires a Qualified Domestic Relations Order (QDRO), which allows the funds to be divided without triggering tax penalties or early withdrawal fees. The QDRO ensures that both spouses receive their fair share of the retirement benefits earned during the marriage.

Georgia courts consider a wide range of factors when determining how to divide marital property equitably.

• The duration of the marriage
• The financial contributions of each spouse
• The non-financial contributions of each spouse (such as homemaking or child-rearing)
• Each spouse’s separate property
• Their earning potential
• Their conduct during the marriage

For example, a spouse who sacrificed their career to support the family may receive a larger share of the assets, reflecting their non-monetary contributions to the marriage.

While Georgia is not a community property state, the concept of quasi-community property can come into play if the couple acquired assets in a community property state before moving to Georgia. In such cases, the Georgia courts may apply principles of quasi-community property to ensure that assets are divided fairly, reflecting the community property rules of the state where they were acquired. This approach helps achieve an equitable result when dividing out-of-state assets.

To protect separate property during marriage, it’s essential to maintain clear boundaries between personal and marital assets.

• Keeping detailed records of all pre-marital assets
• Avoiding commingling of funds (e.g., not depositing separate property into joint accounts)
• Considering the use of trusts to protect inherited assets

Additionally, consulting with a family law attorney to draft a prenuptial or postnuptial agreement can offer significant protection for separate property in the event of divorce.