The state of Georgia recognizes that both spouses have an equitable interest in all marital property acquired during the course of the marriage. Unlike states with community property laws, however, this equitable distribution method of dealing with property in divorce does necessarily result in an equal division of property between spouses.
Marital Versus Separate Property
First, courts must distinguish between "marital" and “separate” property. This is an important distinction because marital property is divided between spouses, but separate property is not; spouses get to keep their separate property after divorce.
There are specific rules, set out in case law, for determining which assets are separate and which are marital property.
The general rule is that all property acquired by either spouse during the course of the marriage, regardless of title, is marital property and subject to equitable division.
Separate property includes any asset acquired before the marriage, or acquired by either spouse during the marriage via third-party inheritance or gift (gifts that spouses make to each other are marital property).
How do Courts Divide Marital Property in Georgia?
Once a court determines what assets are marital, it must determine how that property is to be divided. Divorce courts are "courts of equity" (courts governed by notions of fairness), so they have complete discretion when deciding how to award marital property. And, unlike community property states, the courts in Georgia are not bound by any predetermined rules or formulas; they will distribute property in any proportion they believe is fair under the particular circumstances of each case.
Georgia courts typically consider the following factors when deciding what is a fair and equitable division of marital property:
- 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
- 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.
How are Retirement Benefits Divided?
Whenever there is a need to divide interests in a retirement benefit such as a 401(k) plan, pension plan, or other future benefit that cannot be liquidated immediately, the court can issue a Qualified Domestic Relations Order (QDRO), which will effectively divide the asset into two separate accounts, one for the participant spouse, and another account for the non-participant spouse.
QDROs are complicated and if prepared incorrectly, important benefits and rights could be lost. If you need a QDRO in your divorce case, you should contact an experienced family law attorney for help.
Do we Have to go to Court to Divide our Property?
No. Divorcing spouses may resolve all issues in 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 issue in their case. If they can't resolve all of their 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.