(Division of the Property comprises a troika of subjects in Divorce: Division of Personal Property, Division of Real Property and Alimony, which are the subject of a separate Blogs #12, #13 and #14)
Couples seeking an uncontested divorce need a primer on property law and on Georgia laws it relates to division of property and debt upon divorce in order to negotiate a fair division of property and debt on their own. We begin at the outset with defining property, which can be real property or personal property. Real property includes all real estate. It includes your home, beach house, condominium, or any interest in real estate. Personal property is all property that isn’t real property. Personal property is all property that is not real property. Personal property includes property such as cash, cash equivalents, securities, bonds, savings accounts, checking accounts, retirement funds, retirement accounts, pensions, vehicles, household furniture and goods, jewellery, books, record collections artwork and so on. Georgia law provides that upon divorce marital property and debt are to be equitably divided.There are two key words in the law: “marital” and “equitable”.
What is marital property?
Marital property is property and debt acquired during the marriage, whether titled jointly or separately. Real estate may be marital and/or non-marital property, as we will discuss it in a separate Blog. Marital property includes pensions, retirement benefits, 401(k)s and business interests acquired by one spouse during the marriage and they subject to equitable division.Courtney v. Courtney, 256 Ga. 97 (1986) and Andrews v. Whitaker, 265 Ga. 76 (1995). This is true even if the pension was earned by the employment of only one spouse during the marriage.
Military retirement pay is also subject to equitable distribution in Georgia. Frost v. Frost, 299 Ga. 278 (2016).On the other hand, property acquired by one spouse before the marriage, or by gift or inheritance during the marriage,remains the separate property of the spouse who had it before the marriage or acquired it during the marriage, and it is not subject to equitable division. Stokes v. Stokes, 246 Ga. 765 (1980),Payson v Payson, 274 Ga. 231 (2001) and Bailey v Bailey, 250 Ga. 15 (1982). However, these types of property may be considered marital property if the value of the property appreciated during the marriage and that appreciation was caused by the efforts of the other spouse. Halpern v. Halpern, 256 Ga. 639 (1987).
A spouse can convert separate property to marital property by changing title from individual to joint ownership during the marriage. It is assumed that the spouse intended to make a gift of the property to the marital estate. Marital and separate property can also be mixed together, or commingled, rendering it all marital property. And lastly, in what is a complex subject, if both spouses contributed to an asset that increases in value during the marriage, Georgia follows the “source of funds” rule in Thomas v. Thomas, 259 Ga 73 (1989), which requires dividing the value of the asset in proportion to the contributions of marital and separate property.
This area of the law is evolving, although the seminal notion that separate property brought into the marriage remains the separate property of the spouse who brought it into the marriage remains a valid general rule Georgia.
What does “equitable” mean?
“Equitable”means “fairly”; it does not mean equal or half-and-half (50/50). In applying the fairness rule, the spouses may consider division of the value of the marital estate as a whole, so that the result is a fair division. To give a simple example, in a case where equitable means equal, if the first spouse has a 401(k) account worth $100,000.00 and the couple has $200,000.00 in a brokerage account, $100,000.00 of the brokerage account can be transferred to the first spouse to offset the $100,000.00 in the 401(k), and the remaining $100,000.00 can be divided equally as marital property. Spouses can also sell property and divide the proceeds fairly. Note that debt accrued during the marriage must be allocated fairly as well, including mortgages, car loans and credit card debt. (See Georgia Code Section 19-5-13).
Your Personal Property Division in an Uncontested Divorce
Georgia courts generally accept an agreement as to division of property and debt reached by the spouses themselves in an uncontested divorce.
For assistance in negotiating division of property and debt and reducing your agreement into a well drafted uncontested divorce Settlement Agreement, call us at 770-933-0780 or send an email to firstname.lastname@example.org. Consultations are free and we have hundreds of satisfied clients.