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Georgia Property Division
Property Distribution Laws in Georgia

In Georgia, the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the Superior Court divides the marital estate within the Judgment of Divorce.

Georgia is an equitable distribution state. Equitable does not mean equal, or even half, but rather what the Superior Court considers fair.

When the parties are unable to reach a settlement, the case goes to court.

Each spouse keeps his or her separate property and the court divides the property acquired during the marriage on an equitable basis. The courts are generally authorized to effectuate an equitable distribution of all property, real or personal, including pensions or other employment benefits acquired by either spouse during the marriage.

Upon divorce, each spouse would be entitled to the "separate property" that he or she owned prior to the marriage, plus any appreciation the property has earned. "Separate property" includes any gift, bequest, devise or descent acquired by one spouse.

In Georgia, either party can demand that a jury decide all financial issues of a divorce, including the equitable division of property; but this can delay the action.

According to the Georgia Code Section 19-5-13, [t]he verdict of the jury disposing of the property in a divorce case shall be carried into effect by the court by entering such judgment or decree or taking such other steps as are usual in the exercise of the courts equitable powers to execute effectually and fully the jurys verdict.

Factors in Equitable Distribution

Although each spouse would take out of the marriage his or her own separate property, the marital property is split fairly. In doing this the court considers:

  • the standard of living during marriage;
  • the earning capacities of both parties;
  • the education and vocational skills of both parties;
  • the current income of both parties;
  • the age and health of the parties;
  • the assets, debts, and liabilities of the parties;
  • the needs of each of the parties;
  • the provisions for the custody of the minor children;
  • each party's contribution to the acquisition of existing marital assets;
  • each party's enhancement of the value of existing marital assets; and
  • whether either party has dissipated or diminished the value of the martial assets by wrongful conduct.

In Georgia, each spouse has an equitable interest in all marital property acquired during the course of the marriage. The only property considered for equitable division is the property that exists at the time of divorce. The marital property may be assets of either partner, including retirement benefits.

Marital Debts

Most divorcing spouses try to settle debts as part of the divorce, and they close all joint accounts.

All legal issues must be resolved before a final divorce decree can be handed down; thus a divorce can be pending for months or even years until all these issues are resolved by settlement or the jury.

Marital Property vs. Separate Property

Marital property includes anything purchased or acquired from the marriage date until the date of filing the petition for divorce. Marital property means jointly titled property or property titled in the name of only one spouse. The value of improvements to separate property is subject to equitable distribution.

Marital property includes everything, and it does not matter whose name is on the title or if the assets are held solely in one name or are jointly titled.

Separate Property, on the other hand, is anything brought to the marriage by one spouse and neither judge nor jury can dispute that - with one caveat. Separate property must be isolated and may not become commingled with marital funds. For example, if a savings account in the name of the spouse who owned it is separate, but the owner took money from the account and invested it in a jointly owned asset, that asset is marital and subject to distribution.

Property Defined

Some property is a mixed asset because it is both separate and marital. Typically this involves a house, property purchased in part with separate property and in part with marital funds.

According to Charles R. Adams, a Georgia lawyer for 26 years, the court determines what portion of the property is separate and gives that spouse 100 percent value for that portion and then divides what remains of the property equally between both spouses.

Under Georgia law, courts treat a marriage like a business partnership. Georgia presumes that a stay-at-home mom contributed every bit as much to the marriage as the breadwinner.

Valuing and Dividing Property

The Superior Court classifies property as marital or separate. Spouses must prove how much each piece of property is worth as well as how it was acquired - i.e., separate or marital. The court distributes property from one spouse to the other by evening out the shares of marital and separate property.

The Marital Home

In Georgia, as in many jurisdictions, the equity in the marital home is often one of the biggest assets the spouses divide. The equity is the market value of the house, less any debts or liens against it. Equity is established by determining what the current market value of the home is at the time of separation. Once the spouses agree to a current market value, any debts associated with the property (mortgage, taxes, home equity loans, etc.) are deducted from the market value to arrive at the equity to be divided. Normally, making this calculation requires a paid real estate appraisal or a real estate agent can prepare a market analysis for free.

From there, couples choose one of three options to divide the equity:

  • The spouses sell the home and divide the proceeds.
  • One of the parties may refinance the home and buy out the other party.
  • One spouse (usually the custodial parent) remains in the home with the exclusive use and possession for a certain period of time (for example, until the youngest child graduates from high school), then either buys out the other spouse or sells the home and divides the proceeds.

When children are involved, the Georgia courts are not averse to postponing the sale of the family home (a major asset in any marriage) until the youngest of the offspring reaches the age of 18. This means that the spouses may be sitting on equity they cannot touch for a period of years. However, it also means that the children have a safe and secure home until they fly the nest.

Pensions and Retirement Accounts

Marital property includes pensions. Therefore, that portion of a pension that was earned by one party during the years of the marriage can be divided by the court in an equitable manner.

In Georgia, vested pensions are marital property. A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.

Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.

In Georgia, the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:

  • Defined Contribution Plans: A defined amount of money belonging to the employee. The employee and/or the employer make defined contributions. The balance of the plan is constantly changing, but its value is definable at any given point. 401(k)s, 403(b)s and profit sharing plans fall into this category.
  • Defined Benefit Plans: A retirement benefit where an employer promises to pay a benefit to an employee sometime in the future, based upon some type of formula. Normally, this formula is based on the employees salary near the end of his or her career and the number of years he or she worked for the employer before retirement. Defined benefit plans are much more complicated to value and often require the professional evaluation of an actuary to determine exact values.

In Georgia, if spouses share in each others retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, how such benefits should be paid, etc.

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