Is Georgia a state that recognizes community property?
Georgia does not have a community property law. Instead, Georgia divorce rules provide each spouse an equal share of any property accumulated during the marriage. This is referred to as an “equitable distribution” strategy.
In contrast to jurisdictions that have community property laws, the equitable distribution method of dividing property in divorce does not always result in an equal allocation of assets between spouses.
In Georgia, what is considered community property?
There are particular standards for identifying which of a couple’s assets are separate and which are marital, or community property, as laid down in case law. The difference between “marital” and “separate” property is crucial because marital property is shared between couples, but separate property is not. After a divorce, a spouse is usually allowed to maintain his or her individual property.
Marital Assets
The basic rule is that regardless of ownership, any property gained by either spouse during the marriage is marital property and subject to equitable distribution. The marital house, automobiles, presents from one spouse to the other, each person’s 401(k)s (retirement funds accumulated during the marriage), and other assets and obligations obtained during the couple’s marriage are all included.
Separate Real Estate
Any asset obtained before the marriage, or acquired by either spouse during the marriage by third-party inheritance or gift, is considered separate property (other than from a spouse).
A prenuptial agreement might identify a spouse’s property as separate, even if it was acquired after the marriage. Keep in mind that in order to be upheld in court, a prenuptial agreement must be properly drafted.
In Georgia, how do courts divide marital property?
After determining whether assets are marital, the court must decide how the property will be distributed. Divorce courts are “courts of equity” (courts bound by principles of justice), which means they have total discretion in determining how to distribute marital property. Georgia courts, unlike those in community property jurisdictions, are not constrained by any established rules or formulae. Under the facts of each case, a judge will divide property in whatever proportion they decide is fair.
When determining what is a fair and equitable split of marital property, Georgia courts often examine the following factors:
● each spouse’s separate assets and financial status any alimony awarded to either spouse’s income and earning capacity the conduct of the spouses towards each other during the marriage any wrongful conduct that resulted in the dissipation (waste) of assets by either spouse’s future needs, including retirement planning, and each spouse’s debts
In a divorce, who gets to keep the house?
A marital house is a couple’s shared property that will be distributed according to equitable and fair criteria. When choosing who gets the home in a Georgia divorce, a court may consider some of the considerations stated above. In addition, a custodial parent (one who stays with the children the most of the time) may have an edge when it comes to obtaining the home in the event of a divorce. The necessity to create a stable home environment for any children is one consideration that a court will examine. This typically indicates that the marital residence will be awarded to the custodial parent as part of the divorce settlement.
A court may order that a couple’s marital home be advertised and sold immediately if they can no longer afford to maintain it. When the residence is sold, the earnings might be shared equitably or according to the divorce order.
In Georgia, how are retirement benefits distributed?
Retirement benefits such as 401(k)s, IRAs, and pension plans are marital property that must be divided fairly in the event of a divorce. Any assets accumulated in a 401(k) before marriage are not subject to division, but deposits or interest received in a 401(k) after a couple’s marriage are considered marital.
The court may issue a Qualified Domestic Relations Order if there is a need to split interests in a retirement benefit such as a 401(k) plan, pension plan, or other future benefit that cannot be liquidated immediately (QDRO). A QDRO splits the asset into two accounts, one for the participating spouse and one for the non-participant spouse. QDROs are difficult documents that, if written wrong, may result in the loss of crucial benefits and rights. If you need a QDRO in your divorce case, you should get legal advice from an experienced family law attorney.
Do We Need to Go to Court to Separate Our Assets?
No. Negotiating and signing a formal settlement agreement memorializing their agreements might help divorcing couples address all difficulties in their divorce. Even with mediation, it’s not always feasible for couples to agree on every point in their case, thus entering into a divorce settlement is frequently the preferred method of resolving a divorce. They will have to petition a court to make judgments for them if they are unable to address all of their difficulties. Because a disputed divorce might take months or even years to conclude, going to court can be highly costly.
