Equitable Distribution

If you are facing a divorce in the State of Georgia, there are probably two big questions on your mind. First, many people are concerned about child custody issues and how couples with children will share their parenting duties going forward. Next in line — or first for many people who do not have child custody issues to determine — is how property will be divided between the divorcing parties. In addition to the division of assets such as money in savings accounts, property, and vehicles, there is also the concern over how debt will be divided up. Many states are equitable distribution states, and Georgia is one of them. Understanding what this means will help take some of the mystery and stress out of the divorce process.

What Is Equitable Distribution?

You might think that the term “equitable” in equitable distribution means that each spouse will get an equal share in the division of the property during a divorce, but this is not necessarily the case. Instead, there are several factors taken into consideration when determining how property will be distributed during a divorce in which the parties cannot come to an agreement among themselves. In this state of Georgia, it’s a jury hearing the case who will determine what is considered “equitable,” and the jurors may consider the following factors:

  • The ability of each spouse to support themselves after the divorce is finalized. This may include the income of each spouse in their current employment or the earning potential based on education and prior work history.
  • The health of each spouse. This may include ongoing or current medical issues, their associated costs, and their impact on employment.
  • How long the marriage lasted. Long-lasting marriages are likely to result in more jointly acquired property and thus more assets to equitably divide.
  • Who has been awarded primary custody of any children. The spouse who has primary custody may receive preference for acquiring assets such as vehicles and the home in which the children reside.
  • The age of each spouse. This factor can come into account when considering the spouse’s likely date of retirement and financial needs.

As you can see, these factors can cause a lot of variation when it comes to determining how property should be divided up between the divorcing parties, and since the decision will ultimately be made by a jury, the outcomes can be somewhat unpredictable.

What Counts as Marital Property?

While the decision of a jury can cause a level of unpredictability in the equitable distribution of property in Georgia, the state does have determinations about what counts as marital property. Generally speaking, any property acquired during the course of the marriage is considered marital property, regardless of whose name is on the title of the property. This means that a house or car purchased during the marriage counts as marital property that could be awarded to a single spouse during equitable distribution even if it was purchased in the other spouse’s name.

In addition, marital property includes any gifts given between the spouses during the marriage. Financial assets such as savings accounts, investments, and retirement funds are also considered marital property. In the event that a spouse had a 401(k) prior to marriage, the amount accrued during the marriage is considered marital property.

What Counts as Separate Property?

Not all assets are considered marital property. Georgia also recognizes some assets as separate property, which will not be in consideration for equitable distribution. This includes property that either party acquired prior to the marriage and property that was acquired as a gift from a third party. However, gifts acquired from the other spouse are not considered separate property.

Finally, a premarital agreement can designate some property — even if it is acquired during the marriage — as separate property. However, the exact wording of a premarital agreement can — and likely will — face heavy scrutiny during divorce proceedings.

What Factors Should You Consider?

During a divorce proceeding in Georgia, it is important that you look out for asset concealment. This occurs when one spouse attempts to conceal some assets in order to unfairly influence the division of property during equitable distribution. While it is against the law to transfer property once a divorce proceeding has gone into effect, there are still plenty of warning signs to look out for to ensure that the equitable distribution of property is handled fairly.

If a spouse is being secretive about financial information, it could be a sign that they are trying to conceal assets. Warning signs include hiding passwords to financial institutions, opening new bank accounts, or suddenly having unusual spending habits.

Often, the most advantageous position can be to come to an agreement on a fair and equitable division of property without the determination of a jury. However, this outcome is not always possible. No matter how the divorce proceedings move forward, it is important to have an experienced Atlanta divorce attorney who can help you navigate the complexities of equitable division of property. If you are going through a divorce in Georgia and need to speak with an attorney who can help you understand your next steps, please reach out today to get the insight and clarity you need.