Marital Assets vs. Separate Assets Under GA Divorce Law

Experienced Georgia Family Law & Divorce Attorneys

The division of property and other valuable assets during a Georgia divorce can be a complex matter.  When separating assets, Georgia law focuses on distinguishing  between marital property and separate property. In general, marital property will be divided equitably between the spouses, and separate property will be kept solely by the spouse who owns that property.

Distinguishing Between GA Marital Property and GA Separate Property

As a rule of thumb, assets that were owned prior to the marriage are considered separate property under Georgia law, while property acquired during the marriage is considered marital property.  While this is a general rule of thumb, there are many intricacies and exceptions, and you should be careful to list and discuss each of your assets with our family law attorneys prior to filing for your divorce in Georgia.  As an example, when a gift is received by a third party or is inherited by either a husband or wife, even though those assets were acquired during the marriage, they are often considered separate rather than marital property under Georgia law.  On the other end of the spectrum, property acquired prior to the marriage may in certain situations be deemed marital property.  For example, if one spouse owned a home prior to the marriage, but paid off the mortgage on that home during the marriage, a Georgia court may decide that the additional equity in the home is marital property since the mortgage was paid off during the marriage.  The same theory could hold true for a 401(k) or retirement account that was owned separately by one of the spouses before the marriage, but increased in value over the course of the marriage.

"Equitable Distribution" Under Georgia Divorce Law

After all marital assets are defined as either Georgia marital property or Georgia separate property, the second step will be to divide the marital assets among the two spouses.  According to Georgia divorce law, each spouse is entitled to an equitable share of marital property.  It is important to note that under Georgia law, "equitable" does not mean "equal."  Instead, in the absence of a Georgia Prenuptial Agreement, equitable is described more accurately as what a judge or a jury deems to be "fair" given the totality of the circumstances.

The distribution of marital assets during a Georgia divorce can be a complex and contentious matter.  First, distinguishing between GA marital property and GA separate property is not as easy as simply determining what property was purchased prior to the marriage and what property was purchased during the marriage.  Second, even after a couple's marital property and separate property have been defined, there is no pre-set formula or percentage used under Georgia divorce law to divide marital property.  The operative word is "equitable," not "equal," giving a good amount of  wiggle room for a judge or jury to make decisions one way or the other.   For all of these reasons, we strongly recommend that you consult with our Atlanta divorce attorneys to discuss the separation of your marital assets prior to filing for divorce. 

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