Property Division During Divorce

Kathleen* is going through a contentious divorce. As if it’s not emotionally hard enough to divorce after 15 years of marriage, Kathleen’s estranged husband wants half the beach house her father left her in his will.

Fortunately for Kathleen, Atlanta divorce attorney Pete Chambers is highly knowledgeable and experienced with property division issues in Georgia. According to Chambers, “We help our clients accurately inventory assets to clearly define separate property from marital property.”

How is Property Divided in Georgia?

Like many states, Georgia law provides for an equitable division of assets. The courts seek to achieve an equitable, or fair, division of marital property in divorce cases. This may not necessarily always mean a 50/50 or equal split of assets.

Unless the parties can agree themselves, then then the court will decide what is an appropriate equitable division of the marital assets. The court will first define what is the marital estate or what assets need to be included in the division and will then determine the equitable division of the marital estate or those assets.

Equitable division of assets may include all property acquired by one or both spouses during the marriage, no matter how the title is held.

When deciding equitable division, the judge presiding over your case may consider the following factors:

• Financial status of each spouse
• Needs of the family, particularly the custodial parent
• Separate property
• Evidence of misconduct resulting in a reduction in value of assets by the accused spouse
• Evidence of any efforts to hide assets by either spouse
• Future needs of each spouse

What is Considered Martial Property?

Marital property is any asset or property acquired, purchased, or saved during the marriage by either spouse, no matter how titled, and no matter which spouse acquired the asset, other than assets acquired by gift or inheritance.

This can include homes, vehicles, cash, stocks, bonds, collectables, business interests, insurance, and retirement accounts. Even when one or more of these assets is held or titled under one spouse’s name, it is considered marital property.

For the most part, marital property is evenly divided, considering all factors, including tax considerations impacting each asset and/or the transfer of an asset to the other party.

What is Considered Separate Property?

Property owned by one spouse prior to the marriage, or property that has been inherited by one party or gifted to one party, (excluding gifts between spouses) may be considered separate property.

In Kathleen’s case, the beach house she inherited was specifically willed to her alone even though she was married at the time of inheritance. Her beach house will most likely be considered separate property and not subject to equitable division.

Additional factors that may be taken into consideration when determining if an asset is separate property include:

• Title of the asset, including transferring title into joint names during the marriage
• Comingling of the asset
• Active management of the asset
• Contributing marital funds or income into an otherwise separate asset

Spouses may also agree a specific item should be classified as separate property.

Separate property issues can present complexities, particularly for high-net worth clients, that often require careful analysis.

Frequently, classification of these assets demands the use of a forensic accountant to trace any separate property component, increased value, or comingling of assets.

Things to Consider When Dividing Assets 

Your divorce attorney will advise you on how to gather information that will assist in determining the equitable division of assets. Some things you can do to help include:

• Create an inventory of all assets and liabilities.
• Determine the value of the various assets and debts. Note any increase or decrease in value over the course of the marriage.
• Seek the advice of a financial advisor regarding potential tax implications of division of specific assets.
• Indicate which assets are marital versus separate. Only marital assets are split in the divorce.
• Determine how joint debts will be paid.
• Consider the separation of joint accounts like mobile phone plans and auto insurance policies.
• Be on the lookout for hidden assets. In contentious and/or high net worth divorces one, or both, spouses may purposely try to hide assets.
• Consider negotiation and/or mediation rather than having the court determine division of assets. Resolving these issues outside the courtroom allows couples to maintain more control over asset division.

What Should You Do Now?

Divorcing spouses in Georgia need confidence that all separate and marital property be properly accounted for and categorized to ensure a satisfactory property settlement.

Our attorneys at Chambers Family Law are highly experienced at handling separation of assets, including high net worth divorces, and frequently bring in financial experts or forensic accountants to compile a complete view and disclosure of the entire marital estate (ensuring the inclusion of all assets).

We work to determine the value of complex financial assets, find any hidden assets, consider all tax consequences, trace, and allocate separate property interests, prepare any coverture calculations on assets that partially vest during the marriage and partially vest prior to or post marriage, and ultimately work to achieve a fair final division of our client’s estate.

Speak to a Chambers Family Law attorney right now at 404-795-5090.

*Client’s name changed for privacy