When a marriage ends in divorce, both spouses have to pick up a lot of pieces — and have to pick who gets what. Real estate, personal property, pensions, and the wide range of other assets acquired or earned over the course of a marriage have to be divided between the parties. Sometimes, the parties can reach an agreement as to the division of property which will ultimately be included in a comprehensive marital settlement Agreement at the conclusion of the divorce. But for couples who can’t work out their division of property, Georgia law provides for the “equitable distribution” of property between the parties.
Only Marital Property is Divided
A common misconception is that “equitable” distribution means “equal” distribution and that the parties will split all of their assets 50/50. The reality, however, is much more complicated and takes into consideration a number of factors.
First, it’s important to understand that equitable distribution applies to marital property only; that is, property acquired during the marriage. Property that each party had when they first got married or property one party obtained by gift or inheritance during the marriage is deemed to be “separate property” and will not be divided between the parties (though any appreciation in the value of such property that was caused by the efforts of the other party during the marriage will be added to the marital property pile). Conversely and significantly, pensions are deemed to be marital property, and any portion of a pension earned during the marriage is subject to equitable division.
Factors Considered in Equitable Distribution
When the parties don’t agree on property division, a judge will consider a number of factors in determining how to divide marital property between the soon-to-be ex-spouses. These factors include:
- standard of living during marriage;
- earning capacities of both parties;
- the education and vocational skills of both parties;
- current income of both parties;
- age and heath of the parties;
- assets, debts, and liabilities of the parties;
- needs of each of the parties;
- 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;
- whether either party has dissipated or diminished the value of the martial assets by wrongful conduct.
The Marital Home
For most folks, the biggest single asset they acquired during their marriage – and often the one that has the most emotional value as well – is the marital home. Given its importance in terms of value and day-to-day life, dividing a home is particularly complicated and every case is unique. Generally, however, the court will attempt to determine the amount of equity in the property and divide that amount between the parties, with adjustments and buyouts made where the home is retained by one of the parties. Additionally, a court will likely award a jointly purchased home to the custodial parent where children are involved, and otherwise distribute property in a manner that will compensate the non-custodial parent for their share of the value of the home.
J. Alan Welch: Assistance and Guidance With Property Division In Your Divorce
As noted, asset division during a divorce can be extremely complex, with the amount and nature of assets involved and the unique circumstances of each marriage leading to complicated calculations, valuations, and negotiations.
As a compassionate and experienced Georgia divorce attorney, I can help you navigate the tricky waters of asset division and distribution and work with you to ensure that you receive your fair share in your divorce. Contact me today at (912) 265-9811 for a free, initial consultation to discuss your case.
This article has been prepared by J. Alan Welch Law for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.