In a divorce, marital property in Georgia is divided through equitable division, which means that the property is divided fairly, though not necessarily equally. Equitable division can still result in a property division that is equal or almost equal. Each asset is not necessarily divided in proportion to what the Court deems is equitable in a given case, rather, the Court can award specific assets to each spouse to reach an equitable result. For example, one party may receive the entire marital home which has equity in it, while the other party receives an entire retirement account.
Equitable division includes division of real property, such as the marital home; tangible personal property, such as vehicles, furniture, and collector’s items; intangible personal property, such as bank accounts and retirement accounts; and debts, such as credit card debts and student loans. A Court may offset an award of a larger proportion of the marital debts with an award of a larger proportion of the marital assets and vice versa to reach an overall fair result.
Only marital property is subject to equitable division. Subject to certain exceptions, marital property is property acquired by either spouse during the marriage, regardless of how the property is titled. Marital property includes income earned by each spouse during the marriage. Even if a spouse puts his or her income into bank accounts or retirement accounts held solely in that spouse’s name, the income is still marital property.
Separate property is not subject to equitable division. Separate property is property owned by either spouse prior to the marriage or received by that spouse during the marriage as a gift or inheritance from a third party. Appreciation of separate property due to market forces rather than the active efforts of either spouse are also separate property. Additionally, assets purchased with separate property are also separate property, though proving that only separate property funds were used to purchase a specific piece of property can be challenging. Separate property can be converted to marital property and be considered a gift to the marriage under certain circumstances, such as by titling an asset in both spouses’ names. An attorney can evaluate how a Court is likely to characterize specific pieces of property.
Separate and marital property can be commingled. For example, if one spouse owns a home before the marriage, but then mortgage payments and repairs are paid from either spouse’s income during the marriage, the home becomes commingled. Another example is if a spouse has a retirement account before the marriage and then continues to contribute to the retirement account with income earned during the marriage, the retirement account is commingled. It is a question of fact for the Court whether an asset has merely been comingled or has been gifted to the marriage, and an attorney can help you present the best case to the Court.
In Georgia, Courts can apply the source-of-funds rule to commingled property to determine what percentage of an asset is marital and what percentage is separate. The separate portion belongs to the spouse whose separate property it is and the marital portion is subject to equitable division. It is possible, however, for an asset to become so commingled that it is not possible or practical to apply the source of funds rule. For example, if funds are commingled in a bank account with frequent deposits and withdrawals, the transactions may be too numerous to practically apply the source of funds rule.
Seeking Legal Help
Whether you are trying to prove that certain assets are separate property, seeking a larger proportion of the marital property, or want your spouse to be responsible for the marital debts, the The Ruthenberg-Marshall Law Firm can help you with equitable division issues.
For help with equitable division issues in your divorce, you can schedule a Legal Clarity Session with The Ruthenberg-Marshall Law Firm by calling 678-435-9069 or contacting us here.