As a general rule, the best way to distinguish between marital property and separate property under Georgia law is to determine when a particular asset was acquired by one of the parties. If an asset was owned by one of the spouses before marriage, Georgia divorce law will typically rule that property to be considered separate property. On the other hand, an asset that was acquired during the period of the marriage is typically determined to be marital property. However, there is often great room for debate in the application of these general principles, which is why it is so essential to have an experienced Georgia divorce lawyer on your side to protect your interests.

One of the steps our divorce lawyers in Alpharetta (if that location is more convenient for you) might ask you to take is to make a list of your assets and discuss it with us prior to filing for divorce. This is one of the best ways we can help you protect what is yours during the process of distinguishing between marital property and separate property in the eyes of Georgia law. For more information about your particular situation, we invite you to call, email, or complete the online form for a free consultation with our Georgia separation of assets attorneys.

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A contested divorce is, of course, one option. This is the most traditional way of getting divorced in Georgia, and usually involves family law attorneys representing both husband and wife. The case may go to court, but more often than not is usually settled out of court.

Mediation is another method for divorce. This also usually involves an attorney on both sides helping to negotiate settlements on behalf of clients. However, this is often a less contentious process than going to court. Importantly, anything decided at mediation must still pass the scrutiny of a GA judge, especially if children are involved.

A collaborative divorce is another form of alternative dispute resolution that is becoming more and more popular. Again, this usually involves attorneys, and our Atlanta and Athens GA divorce lawyers are involved in many collaborative divorces, however this method also requires a commitment from both husband and wife to working things out amicably. If things do not work out, the attorneys usually step down and different divorce lawyers are called in to handle the contested divorce case.

And then of course there are uncontested divorces in Georgia, which are usually the simplest and cheapest way to go about getting a divorce, but require both husband and wife to agree to every single term of the divorce.

Without a doubt, any consultant will tell you a divorce can be a stressful situation, but knowing your options will help. We wish you the best of luck during this trying time, and please feel free to call one of our Georgia family law attorneys if you have questions or need representation during your divorce process.

According to Georgia family law, the courts are to “equitably distribute” marital property.  This begs two questions.  What is equitable, and what is marital property?  Neither question is what it first appears.

Equitable distribution is best described as what is fair, rather than what is equal.  So if the court decides that a 60-40 split is more fair than a 50-50 split of the property, than that is what the court will do.  The court can base its reasoning on any number of factors, including how much each spouse contributed to the purchase of the property, each spouse’s occupation, if the divorce was “for cause,” if there are children, who has primary custody of the children, etc.  In short, the court can consider almost any factor which would help it arrive at a fair or equitable distribution of the Georgia marital property.

Georgia marital property is, in layman’s terms, property acquired during and as a part of the marriage.  The most common example is a house jointly bought by a husband and wife.  Property owned individually before the marriage, such as bank accounts, is not considered marital property.  Further, property acquired individually during the marriage is often not considered marital property.  For example, if the husband receives a gift of golf clubs from a friend as a birthday present, or the wife inherits some family heirlooms from her parents while they are married, the property is often considered to be separate.  Individual property can become marital property, however, if one is not careful.  For example, if the husband buys himself a car with his own money, but allows his wife to use the car for family errands, it might be “converted” into marital property by the court.

As you can see, the division of property upon divorce can become very complicated, very quickly.  The facts of each case often make or break the separation of marital assets settlement, and we recommend that you have one of our GA divorce attorneys on your side to make sure you aren’t taken advantage of.

Taking The First Step

As can be seen above, issues regarding the separation of marital property can be confusing and sometimes murky, and the help of an experienced attorney to help ensure that your interests are well protected will be invaluable. If you are dealing with a GA divorce, we advise you to speak with one of our divorce lawyers sooner rather than later.  Please note that for a typical divorce, our law firm retainer begins at $2,500.00.  If you would like to talk with one of our family law attorneys about representing you, either fill out the brief form to your left or give us a call.

A Qualified Domestic Relations Order (QDRO) creates or recognizes the existence of an alternate payee’s right to receive, or assigns to an alternate payee the right to receive, all or a portion of the benefits payable with respect to a participant under a pension plan.  Simply put, a QDRO establishes legal rights to receive a designated percent of an ex-spouse’s IRA, pension plan, 401(k), or profit-sharing plans proceeding a GA divorce.

When an ex-spouse receives the entitled money from a retirement plan he/she will be responsible for paying the related income taxes if received in the form of an annuity, pension, or withdrawal and will become a co-beneficiary of the existing pension account.  The entitled ex-spouse can also withdraw his/her share and roll money into his/her own IRA.  A rollover will allow for the postponing of taxes until funds are withdrawn from the IRA.

If funds from a qualified retirement account in Georgia are distributed to an ex-spouse without a QDRO the person with the account, not the ex-spouse receiving the funds, will be responsible for paying the income tax and may even be charged with a 10% premature withdrawal penalty.  Without a QDRO your ex-spouse can receive funds from your retirement plan through a tax-free windfall at your expense.

If you are facing a divorce and the division of retirement assets, QDRO’s can be extremely complicated. We highly recommend speaking with one of our Georgia Divorce attorneys. Contact us for a consultation. We look forward to hearing from you!

Georgia Will and Estate Planning After A Divorce

Because family circumstances may have changed a new will should be written or an existing will should be amended.  How property will be distributed and the executor of your estate may need to be changed. Click here for more information on estate planning and GA divorces.

Georgia Living Trust

Many living trusts are revocable and capable of being changed.  Who will receive property and who will manage the trust should be reviewed.

Life Insurance

If your ex-spouse is listed as the beneficiary of your life insurance policy, a new person may need to be named.

Georgia Power of Attorney

In a case of mental or physical disability it is important to update who will manage your business affairs and your health care decisions.

Bank Accounts

Ex-spouses should be removed as an authorized signer on your bank accounts, mutual funds, and money market funds.

Credit Cards

Credit cards held jointly by you and your former spouse should be closed or have your former spouse’s name removed from the account.

The importance of having all relevant businesses and parties informed on your updated marital status is high.  All official and business records are subject to change due to a new marital status after your divorce in Georgia.  The list above is for general guidance and is not complete.  Please speak with one of expert attorneys to assist you with changes to your legal documents.

Please note that the following article was not written by an attorney and should not be construed as legal advice. We strongly recommend you speak with one of our Atlanta family law attorneys about your particular legal situation.

Under the Uniformed Services Former Spouses’ Protection Act federal law will not divide nor distribute a military members retirement to a spouse unless the service member and spouse have been married for 10 years or longer while the member has been in active military duty.  To be eligible for full benefits after retirement, including medical, a spouse must pass the 20/20/20 test in which the marriage has lasted at least 20 years, the military member performed at least 20 years of service, and there was at least 20 years overlap of the marriage and time spent in the military services.

In terms of GA divorce residency requirements for filing a military divorce, many states will allow a military member or their spouse to file in the state the military member is stationed, the state where the spouse filing resides, or the state where the military member claims legal residency.  The couple will be subject to the laws of the state where the divorce petition is filed including laws regarding property distribution, child custody, and child support.

An active duty member has legal protection from being held in default from failing to respond to legal action.  Under the Service Members Civil Relief Act military members are protected from lawsuits such as divorce petitions so the serving member can “devote their entire energy to the defense needs of the Nation.”  In effect, the legal proceedings of a divorce can be delayed while the service member is in active duty and up to 60 days following active duty.

If you are an active service member seeking a divorce, we strongly recommend you consult with our Atlanta Divorce Attorney Jeff Cleghorn, a military veteran. To set up a consultation, give us a call at (404) 239-3932.

Filing for bankruptcy can give an individual a fresh financial start and relieve the individual from creditors collecting debts.  The ending of all efforts to collect any debts by collectors is known as an automatic stay.  However, before former president Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005 bankruptcy was often used as a tool to permanently evade, or discharge, family obligations set by agreements or court orders after a divorce.  At present, any domestic support obligations are now a first priority claim and are ineligible for discharge including child support and alimony payments.

In most cases an individual or couple will be advised by an attorney to file for bankruptcy before starting legal divorce proceedings.  Filing bankruptcy before divorce proceedings simplifies the clearing out of debt, the negotiating of how remaining debt should be divided, and provides protection from an independent bankruptcy filing by you partner saving you from the future responsibility of having to pay your former partner’s debt.  Filing a joint bankruptcy claim is also more cost effective than filing two separate claims.  To further prevent a creditor from collecting debt from you instead of your former spouse, a wise precaution would be to have a “hold harmless” or “indemnity” clause stated in the divorce decree that will require your former spouse to pay certain debts or repay you if a creditor makes you pay debt.

If you are dealing with a divorce or family law situation, we strongly advise you to speak with one of our Atlanta family law attorneys about structuring a settlement that works for you and your family. We look forward to working with you.

The doctrine of Equitable Division in Georgia was adopted by the Supreme Court of Georgia in 1985 in the case of Stokes v. Stokes. Since then, when dividing assets during a divorce, Georgia courts (1) determine what property is separate and what is marital, and then (2) “equitably” divide the marital property. The factors that go into determining what is considered equitable are:

• The length of the marriage
• The age of each of the parties
• The health of each of the parties
• The earnings of each of the parties
• The potential earnings of each of the parties
• What contributions each spouse made to the family during the marriage
• The debts of each of the parties
• The financial requirements of each of the parties
• Any separate property owned by either party
• The current economic circumstances of each party
• The future potential economic circumstances of each party (inheritances)
• The conduct of each party during the marriage

As can be seen, there are a very wide array of factors that a GA judge or jury may taken into account when determinig the equitable division of property. Unfortunately, as opposed to a community property state, this sometimes means that divorcing couples in Georgia will not have clear-cut guidelines for being able to determine who will be able to walk away with what after a divorce. With that being said, if you are going through a divorce in Georgia where the separation of marital assets will be an issue, we strongly encourage you to speak with one of our Atlanta divorce and family law attorneys sooner rather than later. Please feel free to browse through our site for additional information. We look forward to hearing from you.

Of course, in order for a court to determine how to divide marital property “equitably,” it is necessary that the court first place a value on that marital property. Valuing marital property in Georgia can be as simple as looking up the balance in a bank account, or as complicated as putting a dollar value on a closely held family business.

When the value of marital property is not known, Georgia courts often rely on experts. In real estate, for example, if a judge wanted to determine the value of a marital home they might rely on the testimony of a real estate appraiser. An appraiser would be asked to testify as to the fair market value of the home minus any mortgages, liens or other encumbrances. Oftentimes, however, a couple will prefer to sell the home, making the valuation of the asset significantly either. If this were the case, the court would likely order the parties to divide the proceeds from the sale “equitably” after all costs are deducted. On the other hand, should one party prefer to remain in the residence, the court could order the spouse remaining in the home to refinance the mortgage on the property in his or her own name. In either scenario, knowing the dollar value of the home will assist the court in determining how to equitably divide it.

A “fair market value” approach works well for real estate, but what about other types of marital property? As an example, lets take a family business.

The value of a small business is based on a number of different factors because if the business is a closely held corporation the stocks may have no value on the open market. Of course, the business might be quite profitable, so to value it at $0 is unrealistic. Thus if the parties have a marital business, a GA court will have several issues to contend with such as ownership rights and interests, voting rights, and “key man” issues. Again, an expert will likely play a large role in assisting the court

In general, the valuation of marital assets can present extremely complicated issues, and if you are dealing with a divorce that will involve the separation of assets, we suggest you contact one of our divorce attorneys today.