Every divorce has a common question: How will the property be divided?

No matter the amount of assets and debts, it still needs to be equitably divided during the divorce, and thus this question is a common thread throughout all cases. With the exception of couples who have already spelled out all of the details in their pre-marital or post-marital agreements and those that agree on everything and want an uncontested case, most couples will likely face difficulties in deciding on dividing debt and assets.

Georgia divorce courts do not have a set formula for division of marital or community property, but will instead listen to the case and decide what is equitable based on its specific details. It is important to note that “equitable” is not the same as “equal.” However, it is not uncommon for Georgia courts to equally divide marital property in most cases. The only property not subject to equitable division is that which was inherited or gifted to one spouse, or which is exempt by prior legal agreement such as a prenuptial or post-nuptial agreement. Additionally, property owned prior to the marriage and not commingled remains separate non-marital property.

Commingled property is an area where things get more significantly more complex, as this was property that was non-marital prior to marriage, but was used somehow joined or mixed with other assets to make a new account or class of asset. It may also include property that was significantly repaired or enhanced during the marriage with marital funds. Also, it may include property that the use of marital funds to pay for a loan on the formally non-marital asset (such as a second mortgage on a home, etc.)

The acquisition of real estate in joint names or the transfer of existing real estate into joint ownership also creates legal rights and responsibilities for both parties. Real estate acquired by one spouse during the marriage is usually treated as marital property. The designation of business property could be used to segregate property if income-producing real-estate and self-employment business assets are used to create a business entity. While these efforts could segregate the property itself, the income from the business during marriage could still be marital property (along with the value increase in the business property as a result of that income.)

Money is the most difficult asset to track for the establishment of joint or separate assets. By placing funds in the joint account, you are making a gift to the other spouse of the entire account. Only separate accounts that do not commingle funds and are not used for household expenses and reliably be considered as non-marital property.

If you are facing asset issues in a divorce case, call us at 470-947-2471 to discuss your question with one of our experience and knowledgeable attorneys.

Content Revised: 2015-01-06