One of the major obstacles of a divorce is dividing marital property and assigning martial debts. In Georgia, this is done through equitable division, which means that each party in a divorce must divide marital property in a fair manner. However, that does not necessarily mean equally.
Types of Property
There are two types of property: marital property and separate property. Marital property typically includes assets and debts a couple acquires during the course of a marriage, while separate property belongs to one spouse by owning it prior to the marriage, acquiring it during marriage as a gift, or obtaining it by inheritance.
However, a spouse is able to covert separate property into marital property by changing tile from individual ownership to joint during the marriage. In some cases, both types of property can be intertwined. When a situation occurs where both parties have contributed to a particular property or asset, which has increased in value during the course of the marriage, Georgia adheres to the “source of funds” provision. The rule requires dividing the property, asset, or value of each in proportion to the contributions of marital and separate property.
Spouses can divide property by either assigning certain assets to each party, or by selling property and dividing the proceeds. While another option is to hold property together, this requires continual financial entanglement once the divorce is finalized.
Once the property has been divided, the couple or the court will assign a monetary value to each item. Couples may need qualified assistance from professional appraisers. In addition to property and assets, the spouses must assign all debt accrued during the marriage, such as mortgages, credit card debt, and car loans, to one spouse or the other.
If the couple can’t come to an agreement on property and debt division, the decision will be up to the judge. Every case depends on the specific, unique facts and circumstances, so no fixed formula is used to determine what is equitable.
The Georgia court may consider the following facts when dividing property:
- Length of marriage
- Age and health of each party
- Standard of living throughout marriage
- Source, type, and value of property
- One party’s contribution to the increased earning power of the other
- Present and future needs of each spouse
- Living arrangements of the couple’s children
Generally, the longer a couple has been marries, the more equal a property division will be. In regards to a short marriage, the court may not consider standard of living during the marriage as a contributing factor to property division.