After child custody and support, division of marital property is of utmost concern to my clients who are going through a divorce. In Georgia, this process is called equitable division of property with equitable meaning that which is fair, not necessarily that which is equal. To be sure, not all property is subject to division and the most important consideration is whether the particular property is characterized as separate or marital. Separate property is not subject to division by the Court. The best examples of separate property are those items that were inherited by one party or received as a gift or those items that were owned prior to the marriage. However, to the extent that separate property appreciates in value during the marriage, that increase may be divided by the Court.
In consideration of equitable division, the Court or jury may look at the issue through principles of equity or fairness and also through the principles of alimony as I discussed in a previous column. The Court or jury is limited only by its discretion in dividing marital property. As such, these cases are fact driven and can require extensive hearings and trials to flesh out all the facts associated with the property itself and activities and/or conduct of the parties during the marriage. Because this issue can be so open-ended it is often difficult for attorneys to give blanket advice, and you should consider this column as general information on the subject not as specific counsel directed at any particular situation.
The two items that are most often divided between spouses are homes and retirement accounts. The home is often the most valuable asset that anyone will acquire and any equity in a home that the parties acquired during marriage may be divided. In some cases, equity in homes that were acquired before the marriage may still be subject to division if marital funds have been used to pay the mortgage or if marital funds were used to fund expansions, etc. In many cases, the party who ends up with possession of the home after the divorce is the spouse more able to maintain the debt on the home. However, this is usually accomplished only after some provision is made for the other spouse in the form of lump sum or periodic cash payments to divide equity as directed by the Court or jury. Division of retirement accounts is similar but can be effected by a spouse’s efforts at growing those accounts aside from appreciation that occurs solely due to market forces.
Equitable division is not limited to home and retirement accounts as any marital property is subject to division at the Court’s discretion. Again, these cases are fact specific and, as always, I would encourage anyone with questions on this topic to consult a local attorney.
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