Equitable Division of Marital Property in Georgia

Is Georgia a Community Property State?

No, Georgia is not a community property state. Instead, Georgia divorce laws give both spouses an equitable interest in all property acquired during the couple's marriage. This is called an "equitable distribution" approach.

Unlike states with community property laws, the equitable distribution method of dealing with property in divorce doesn't necessarily result in an equal division of property between spouses.

What Is Considered Community Property in Georgia?

There are specific rules, set out in case law, for determining which of a couple's assets are separate and which are marital, or community property. The distinction between "marital" and "separate" property is important because marital property is divided between spouses, but separate property is not. In most cases, a spouse will get to keep his or her separate property after divorce.

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 made by one spouse to the other, each spouse's 401(k)s (retirement portions accrued during the marriage), and other assets and debts acquired during the couple's marriage.

Separate Property

A spouse's separate property includes any asset acquired before the marriage, or acquired by either spouse during the marriage via third-party inheritance or gift (other than from a spouse).

A premarital agreement can designate a spouse's property, even if accrued during the marriage, as separate. Keep in mind, a prenuptial agreement must be carefully worded to hold up in court.

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. A judge 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
• any alimony awarded to either 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.

Who Keeps the House in a Divorce?

A marital home is a couple's joint property and will be divided based on principles of equity and fairness. A judge may assess some of the factors listed above when deciding who gets the house in a Georgia divorce. Additionally, a custodial parent (parent who primarily lives with the children) may have an advantage when it comes to getting the house in a divorce. One factor a judge will consider is the need to provide a stable home environment to any children. This usually means the custodial parent will receive the marital home as part of a divorce award.

In cases where a couple can no longer afford to keep the marital home, a judge may order the house to be listed and soldimmediately. Upon sale of the house, a couple may split the proceeds evenly or as dictated by the divorce decree.

How Are Retirement Benefits Divided in Georgia?

Retirement benefits like 401(k)s, IRAs, and pension plans are marital property and subject to equitable division in a divorce. Any assets accrued in a 401(k) before marriage wouldn't be subject to division, but deposits made or interest earned on a 401(k) after a couple's marriage would be deemed marital.

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). A QDRO divides 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, even with mediation. 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. See Ga. Code § 19-5-1 (2020).