Marital Property Division Law in Georgia
Surprisingly, the Georgia Domestic Relations Code says very little about division of marital property. The Code provides only one sentence, “The verdict of the jury disposing of the property in a divorce case shall be carried into effect by the court by entering such judgment or decree or taking such other steps as are usual in the exercise of the court’s equitable powers to execute effectually and fully the jury’s verdict.” §19-5-13.
The Code tells us nothing about how or on what basis marital property is to be divided. In a series of rulings, the Georgia Courts of Appeal have spelled out how property is to be divided in a divorce.
Defining Marital Property
In Georgia divorce law, only marital property can be divided. Marital property is property acquired during the marriage by the efforts of the husband and the wife. Non-marital property is referred to as separate property. Separate property cannot be divided, but it can be awarded as alimony. At the time of divorce, the court is required to identify, value, and equitably divide the marital property. Sounds pretty simple, right?
At each step of identifying, valuing, and dividing marital property numerous complexities, difficulties, and surprises await. First, what exactly is property? Is an advanced degree, such as an MBA, property. (No). Is a professional practice, or other business interest, property? (Sometimes yes, sometimes no). Are stock options property? (Yes). You can also run into issues about the classification of property that have no clear answer.
Next, separating marital property from non-marital property can often be a difficult, sometimes even an impossible task. All property belonging to either spouse is presumed to be marital property. The party claiming that an item of property is non-marital must prove it by showing: (a) that they owned the property prior to the marriage; (b) that the property was a gift to them alone; (c) that the property was inherited; or (d) that there is an enforceable agreement between the parties that the property is non-marital.
Property can be partly marital and partly non-martial. In a twenty year marriage, proving that property is non-marital may be impossible because it has gotten mixed up with marital property and the records are long gone. If you’ve had a 401(k) for thirty years, ten of which were prior to the marriage and twenty of which were during the marriage, how much is now marital property? If you have documents showing the value of the 401(k) at the time of the marriage, you could reasonably claim that at least that much is non-marital, but what about the increase on that non-martial portion over the twenty years of the marriage? How do you establish the value of that? The same problem can arise when a house titled in the name of one party was owned before the marriage. If some of the mortgage was paid down during the marriage using marital funds, some of it is marital and some of it is non-marital. Establishing the value of the marital and non-marital portions can be difficult or even impossible.
Valuing Marital Property
Even if you know what parts are marital and what parts are non-marital, valuing the asset can be difficult. While real estate and investment accounts are easy to value, privately owned businesses and pensions are not. Well qualified experts can reach very different conclusions about the value of a privately owned business.
Division of Marital Property
After the marital property is identified and valued, the court then equitably divides the marital property. “Equitably” means whatever the court thinks is fair. The court has broad discretion to identify, value, and divide the marital property as it sees fit. In fairly dividing the property, the court may consider whatever it deems relevant, including:
1. The length of the marriage;
2. The age, health, occupation, vocational skills, and employability of each party;
3. The service contributed by each spouse to the family unit;
4. The amount and sources of income, property, debts, liabilities, and needs of the parties;
5. Debts against the property; whether the division is instead of, or in addition to, alimony;
6. The opportunity of each spouse to earn money or acquire property in the future; and
7. Each party’s contribution to the acquisition and maintenance of the property.
How these and any other factors are evaluated and weighed is entirely up to the judge or the jury. While judges tend to start from the presumption of equal division and tend to be less concerned with emotional issues regarding the conduct of the parties during the marriage, a jury may do almost anything.
All of this should encourage you to settle if possible. If you really cannot settle, you must prepare carefully for trial. Large swings of fortune are possible at trial, depending on the quality of the preparation and presentation of your case.
The Law Office of Lee S. Ashmore is experienced in divorce cases involving large and small marital estates and complex issues, such as the valuation of a closely held business.
The Bank of America Building
777 Gloucester Street, Suite 402
Brunswick, GA 31520
P: (912) 275-7728
F: (912) 342-7142