What You Need to Know About Equitable Distribution in Georgia

Georgia allows judges to step in and equitably distribute marital property when spouses disagree on property division. Here’s what you need to know about equitable distribution in Georgia.

Georgia is an equitable distribution state meaning state guidelines on equitable distribution ensure that both parties fairly benefit both parties.

What is Equitable Distribution?

Equitable distribution is the legal process dividing a divorcing couple’s marital property. Judges split assets among both spouses fairly and equitably. Equitable distribution does not always evenly divide marital property or assets if judges believe it will not benefit one or both parties.

What is an Equitable Distribution State?

Georgia is an equitable distribution state meaning Georgia courts divide marital property and assets based on state guidelines. Equitable distribution states differ from community property and common law states.

What is a Community Property State?

Community property states are when judges evenly split and distribute property and assets obtained during the marriage. The only exception is when spouses have an existing prenuptial or postnuptial. Once a judge declares a prenuptial or postnuptial agreement valid, the court will recognize any conditions surrounding property division.

What is a Common Law State?

A common law state is when a judge distributes property and assets in divorce proceedings based on who legally owns the asset. Common law property means that only individuals with the title would receive the property.

Related: Prenuptial Agreements in Georgia

What Do Georgia Judges Consider in Equitable Distribution?

Georgia guidelines outline what judges should consider when determining equitable distribution.

Courts may consider the following factors in equitable distribution cases:

  • Alimony
  • Each spouse’s financial status
  • Each spouse’s assets
  • Each spouse’s debt
  • A spouse’s misconduct during the marriage
  • Dissipation (when one spouse purposely wastes marital assets while arguing with their spouse)
  • Child support and child custody

How Does Misconduct Affect Equitable Distribution in Georgia?

Misconduct can negatively affect a spouse during the distribution process. Judges may consider misconduct during a marriage or dissipation when dividing marital property.

What is Subject to Equitable Distribution?

Judges in Georgia can only equitably distribute marital property since separate property belongs to its respective owner. Georgia guidelines outline what is considered marital property and separate property.

Related: Georgia Child Support Laws

What is Marital Property?

Marital property is property one or both spouses purchase during their marriage.

Marital property can include, but is not limited to:

  • A house,
  • Cars,
  • 401(k)s (a retirement savings plan offered by most jobs),
  • Assets the spouses obtain during the marriage, and
  • Debts the spouses accrue during the marriage.

What is Community Property or Separate Property?

Separate property is not subject to equitable distribution in Georgia. Separate property is property purchased before marriage, and this property can also include inheritances, gifts received by third parties, and other property or assets obtained before the marriage.

If a couple has a valid prenuptial or postnuptial agreement defining separate property and assets, judges will default to the terms and conditions outlined in the agreement. Couples can also draft postnuptial agreements during divorces to help expedite the process.

Is My Home Considered Marital Property?

Yes, homes are considered joint marital property. However, judges consider a variety of factors before equitably distributing the home. A custodial parent may receive the house over the noncustodial parent who has little parenting time or visitation because of the child’s best interests. Judges want to ensure the parent takes care of the child(ren), so a judge may allow the custodial parent to remain in the house or give most of the home sale’s profit to the custodial parent.

When Are Gifts Marital Property As Opposed to Separate Property in Georgia?

Georgia considers gifts from a person other than your spouse as separate property. Gifts a spouse gives are legally part of the marital property, meaning the gifts are subject to equitable distribution.

How Do Georgia Courts Divide Retirement Benefits?

Georgia considers retirement benefits (401ks, IRAs, and/or other retirement pensions plans) spouses acquire during marriage as marital property subject to equitable distribution. However, a Georgia court will deem retirement benefits a spouse collects before marriage as separate property belonging to the titleholder. When judges cannot immediately divide or liquidate retirement benefits, they may issue a Qualified Domestic Relations Order (QDRO).

What is a Qualified Domestic Relations Order?

A Qualified Domestic Relations Order divides assets, like retirement benefits, into two separate accounts. Each spouse can access the money in that account when the retirement benefit becomes collectible.

What Happens If I Intermingle Separate Property with Marital Property?

The voluntary intermingling of separate property with marital property can cause the property or asset to become subject to equitable division. Judges will evaluate this “mixing” to determine whether it will remain separate. If a judge rules that the intermingled property has become marital property, the court will equitably divide the assets.

How Do Georgia Courts Split Property in Divorce Proceedings?

Equitable distribution is not the only way Georgia courts split property or assets in divorce proceedings. Spouses can divide property themselves as long as they both agree; spouses can also default to their prenuptial or postnuptial agreement as long as a court recognizes the agreement as valid.

What is a Prenuptial or Postnuptial Agreement?

A prenuptial or postnuptial agreement is a written agreement a couple makes before or after marriage outlining asset and responsibility division in a divorce or separation. Georgia courts will default to terms and conditions set in their pre/postnuptial agreement instead of equitable distribution. However, judges will follow equitable distribution laws if the prenuptial or postnuptial is null and void.

What Is the Equitable Distribution Process?

A judge will first evaluate each property or asset to determine whether it is separate or marital property. Judges will equitably distribute the marital property.

How do Georgia Judges Value Marital Property?

Judges value marital property on their market value at the divorce filing. Judges will equitably distribute the marital property to issue a fair decision to benefit both parties.

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