WHAT GETS DECIDED IN DIVORCE – PROPERTY DIVISION

Every divorcing couple has the option of discussing, negotiating and resolving all of the issues in their divorce before they ever go to court.  They can do this themselves or with the help of legal, financial, and counseling professionals.

Working to resolve these issues outside of the court system results in an “uncontested divorce.” An uncontested divorce allows couples to resolve issues in a non-adversarial, non-court driven process and then simply “notify” the court of their agreement by filing the required divorce paperwork.  The court will then grant them a divorce.  For couples who cannot reach a negotiated or uncontested settlement of their divorce issues, filing for divorce will set in motion the process for allowing a judge to decide these issues.

Whether you have decided to work toward an “uncontested divorce” or find yourself headed down the road of a contested, also known as a litigated, divorce you should understand what the court will have the power to decide and how those decisions will be made.  This knowledge will give you the power to negotiate a fair resolution.

DIVISION OF MARITAL PROPERTY AND DEBT – THE COURT LOOKS AT EQUITY OR FAIRNESS

The law that governs marital property division in Georgia is straightforward.  Division of property in a divorce action is a two-step process. First, the property must be classified as either marital or separate.  There are legal rules and court decisions that tell a judge how to classify all types of property.

Generally, marital property is any money or other property earned or acquired during the marriage.  Many couples have only marital property because neither spouse brought significant money or property to the marriage or, if they did, it was mixed in with all the other property they accumulated while married and can no longer be identified as separate.  If one spouse has separate property it will not be subject to equitable division by the court.

Marital property must be divided equitably which means fairly. There is no formula for dividing marital property.  Divorcing couples would be wise to assume a 50/50 split of marital property.  Generally, unless the judge hears evidence that makes him or her believe it would be inequitable or unfair to award both parties 50% of the marital property, a 50/50 split is very close to where most divorcing couples end up.  There are circumstances under which one party might receive more or less than 50%, but rarely do those instances move beyond 60/40 without strong evidence of unfairness to one party.  Because the standard the judge is using to divide the marital property is fairness, in the absence of evidence that one party deserves more than half of the marital property, it is reasonable that fairness dictates a roughly equal division.

Marital debt will also be divided.  Under Georgia law, marital debt is all the debt you or your spouse acquire, together or separately, after you are married. For example, if you take out a credit card in your own name any unpaid charge on that card is a marital debt (even if your spouse cannot use that card).  If your spouse takes out a second mortgage on your marital home (even if you don’t know about it), that loan balance is a marital debt.

Like marital property, the judge will divide marital debt according to principles of equity and fairness.  A judge can consider all circumstances surrounding the creation of the debt, including the use of the proceeds and when the debt was incurred.

For advice about how equitable division of marital property might apply in your divorce we suggest you contact an Atlanta attorney who can address your situation.