Georgia divides marital property based on what's fair, which doesn't necessarily mean an equal split. Learn what counts as marital property and what that means for your home, your retirement accounts, and your separate property.
Georgia is an "equitable distribution" state. This means that marital property is divided based on what's fair given each spouse's circumstances. A fair split is not automatically equal.
By contrast, in the nine community property states, most marital assets are split 50/50 by default. Georgia courts instead weigh factors like each spouse's income, contributions to the marriage, and future needs to decide how to fairly divide marital property.
What Is Considered Marital Property in Georgia?
Georgia law determines whether a particular asset is considered marital property or one spouse's separate property. The distinction is important because marital property is divided between spouses, but separate property is not. In most cases, a spouse will get to keep their separate property after divorce. (Stokes v. Stokes, 246 Ga. 765 (1980); Campbell v. Campbell, 255 Ga. 461 (1986).)
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. This includes the marital home, cars, gifts between spouses that are purchased with marital funds, the portion of each spouse’s 401(k) accrued during the marriage (more on that below), and other assets and debts acquired during the couple’s marriage. (Stokes v. Stokes, 246 Ga. 765 (1980).)
Separate Property
A spouse’s separate property includes any asset acquired before the marriage, or acquired by either spouse during the marriage by inheritance or gift. (Bailey v. Bailey, 250 Ga. 15 (1982); Payson v. Payson, 274 Ga. 231 (2001).)
A prenuptial agreement can designate a spouse’s property, even if accrued during the marriage, as separate. Keep in mind that a prenuptial agreement must be carefully worded to hold up in court.
How Do Courts Divide Marital Property in Georgia?
After a court sorts property into separate and marital buckets, it must decide how to divide the marital property between the spouses. Divorce courts are "courts of equity" (courts governed by notions of fairness), so they have broad discretion when deciding how to award marital property. A judge will distribute property in the proportion they believe is fair under the particular circumstances of each case.
Georgia courts typically consider the following factors when deciding how to divide marital property fairly:
- the separate assets and financial status of each spouse
- any alimony awarded to either spouse
- the income and earning capacity of each spouse
- the future needs of either spouse, including retirement planning
- the conduct of the spouses toward each other during the marriage, and
- each spouse’s debts.
(Stokes v. Stokes, 246 Ga. 765 (1980); Peters v. Peters, 248 Ga. 490 (1981).)
Who Keeps the House in a Georgia Divorce?
Whether the marital home is subject to division depends on how and when it was acquired. It isn't automatically joint property just because a couple lived in it during their marriage.
If the home was purchased during the marriage through the labor and investments of the spouses, it's generally marital property and subject to equitable division regardless of whose name is on the title or the deed. But if one spouse owned the home before the marriage, or received it during the marriage as a gift or inheritance, it's generally that spouse's separate property and isn't divided.
But separate property doesn't always stay fully separate. If, for example, marital funds are used to pay down the mortgage, fund renovations, or otherwise increase a home's value, a court may treat the value traceable to marital contributions as marital property subject to division, even though the underlying house remains separate. (Thomas v. Thomas, 259 Ga. 73 (1989); Bass v. Bass, 264 Ga. 506 (1994).)
Once a court determines a home (or a portion of its value) is marital, the home is divided based on the same equitable factors used for other marital property. If the couple has children, the court will often weigh whether the primary custodial parent should remain in the home with the children if the couple can afford it.
If the couple can't afford to keep the marital home, a judge can order them to sell it, with the proceeds divided according to the divorce decree.
How Are Retirement Benefits Divided in Georgia?
Retirement benefits that spouses earn during the marriage count as marital property and can be divided in a divorce. Money put into a retirement account before the marriage usually stays separate property. (Stokes v. Stokes, 246 Ga. 765 (1980).)
Growth on that money is judged differently. If the account grows just because the market goes up, that growth stays separate too, even if it happened during the marriage. But if the growth comes from new contributions made during the marriage, or from a spouse actively managing or trading the account, that part can be divided. (Thomas v. Thomas, 259 Ga. 73 (1989); Bass v. Bass, 264 Ga. 506 (1994).)
How a retirement account actually gets divided depends on what type of account it is. For most employer plans, like 401(k)s and pensions, the court uses a separate order called a Qualified Domestic Relations Order (QDRO) to tell the plan how to pay out the other spouse's share. IRAs work differently. These accounts are typically divided through the divorce paperwork with the account's custodian. Other retirement plans, such as Georgia's state and local government pension systems and military retirement plans, have their own special rules and processes for dividing benefits after a divorce.
Because using the wrong process can delay your payout or cause tax problems, it's worth talking to a divorce lawyer before dividing any retirement account.
Do You Have to Go to Court to Divide Property?
Divorcing spouses can resolve all issues in their divorce by negotiating and entering into a written divorce settlement agreement. 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, even through mediation.
When divorcing spouses can't resolve all of their issues, a judge makes 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.
Where to Find More Information and Legal Help in Georgia
You can find the Official Code of Georgia Annotated on LexisNexis.
If you have a lot of assets or need to divide complicated assets, like retirement benefits, it's best to work with a lawyer. If you can't afford an attorney, the Georgia courts provide online packets of basic divorce forms, along with instructions, checklists, and videos that walk you through the process. Many counties have their own forms, so contact your local superior court clerk’s office for more information. You can also find free, easy-to-understand legal information on GeorgiaLegalAid.org.
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