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How Is Property Divided In A Divorce In Georgia?

  • Divorce Property Division in Georgia

    The splitting of a marriage can be a stressful time for both spouses. It often creates a great feeling of unease for both parties as well as poses many challenging questions. One specific issue that is of particular importance is how the couple’s assets will be divided. If the couple can agree to a process for asset distribution during divorce, the Georgia court system will usually allow them the freedom to make that decision. If the couple is unable to come to an agreement than the division of assets will be a part of the divorce court proceedings. The state of Georgia is what is known as an equitable distribution state.  The equitable does not necessarily mean equal, but instead, means what the court decides is fair.

    How does the court view a property?

    During a divorce, both partners are allowed to keep the property that they owned before the marriage. The court only divides the assets acquired over the course of the wedding on its equal distribution basis. The assets can include any physical object as well as employee benefits and pension received by either spouse during the duration of the marriage. If either party wishes for their assets to be divided by a jury, he or she has the freedom to request so, although it may slow down the trial.

    Factors considered during equitable distribution

    When the court is splitting the property obtained during the marriage, they take several factors into consideration to determine how to divide the assets fairly. Some factors they consider are:

    • the earning ability of both parties
    • the standard of living the couple had during the marriage
    • the income of both partners
    • the health and age of the parties
    • the education and skills of both parties
    • the needs of both spouses
    • the provisions for the custody of children
    • the assets, debts, and liabilities of both parties
    • how much did either partner contribute for new assets

    How does the court define mixed property and how do they divide it?

    Often, a property can be considered mixed. Mixed property is partially separate and partially martial. For instance, if a couple moves into one spouse’s home after they are married, the spouse who bought the house will have separate ownership of the house. However, if the couple added an in-ground pool to the home during the marriage, then the price of the in-ground pool is considered a marital asset and will be divided during the divorce. In cases like this, the spouse who bought the house will get 100% of the house because he or she owned it prior to the marriage, and both partners will be given a percentage of the pool asset equally.

    How the house is divided

    When the court begins to attempt to split the home equally, they use the home’s equity as the value they split between the two partners. The equity is the total market value of the house at the time of the divorce minus any debts or liens against it. The calculation often requires the aid of a real estate appraiser for a market analysis and a home valuation.

    Once the home is evaluated, the couple has a few options about how to divide the house. They can:

    • Sell the home and divide the proceeds
    • One spouse can refinance the home and then buy out their partner
    • The partner who is given custody of the children may be allowed to live in the house for a period (such as until the youngest child graduate from high school). Once the period ends, the spouse must either sell the house and divide the proceeds or buy out the other spouse.

    The court allows the spouse with child custody to postpone selling the house so that the children have a secure home until they come of age.

    Pensions and Retirement Accounts

    During a divorce in Georgia, pensions are also considered marital property. Therefore, a portion of a pension earned by a spouse during the marriage will also be divided equally in court. Both vested and unvested pensions are considered martial property. Vested pensions are pensions that have had their requirements to be received met, and unvested pensions have not had their needs met.

    The court may also divide the retirement benefits and plans between the two parties. While forms of retirement plans vary widely, they often divide into two types. Defined contribution plans set specified amount for the employee and a defined benefit plan where an employee promises the pay the employee some benefit in the future. Both types of programs are divisible in divorce under Georgia law.