Division of Marital Property in a Georgia Divorce

Division of Marital Property. Marital property is defined in Georgia as "that property acquired as a direct result of the labor and investment of the parties during the marriage." Courtney v. Courtney, 256 Ga. 97 (1997).

Accordingly, all property (real estate, financial assets, vehicles, tangible personal property, interests in retirement accounts, brokerage accounts, interests in partnerships, corporations, LLCs, etc.) that was acquired during the marriage from the labor and efforts of either spouse is subject to division. (Assets that appreciated solely due to market forces, for example stocks or investment accounts that were owned before the marriage and kept separate during the marriage, are not subject to division.)

  1. The first step is to determine what property is marital and what is separate. Prenuptial or post nuptial agreements, if any, will come into play here. While general categorization of property as marital or non-marital is a question of law for the court, whether a particular item is marital or non-marital is often a question for the trier of fact. Franklin v. Franklin, 267 Ga. 82 (1996).

  2. Any property that you owned prior to the marriage that has not been transferred to your spouse during the marriage is separate. Any property you received by gift or inheritance during the marriage that has not been co-mingled in a marital account is separate. Any balance you had in a retirement account prior to the marriage is separate. And the manner in which property is titled is becoming increasingly important. There are a number of recent cases that state, if separate property is conveyed to both spouses, it becomes marital. See, Lerch v. Lerch, 228 Ga. 885, 608 S.E.2nd 223 (2005) (conveyance of separate property to husband and wife as "tenants in common" by deed converted entire property to a marital asset); Shaw v. Shaw, 290 Ga. 354 (2012)(husband deposited separate inherited funds into joint investment accounts thereby converting separate property to marital property). Also, investments of separate monies in marital property, such as real estate, may need to be traced. See, Thomas v. Thomas, 259 Ga. 73 (1989).

  3. Once you have a clear understanding of what property is marital and what is separate - which should be set out on a full and detailed marital assets / debts balance sheet - you can talk about how to divide the marital estate, which includes all marital debts as well. Georgia is an “equitable” division state. This means that the division is usually, but not necessarily, 50/50. Fuller v. Fuller, 279 Ga. 805, 621 S.E.2nd 419 (2005). Conduct can play a role. Arguments can be made that marital misconduct justifies an award of a greater portion of the marital estate to one of the parties.
If you are looking at a trial on property division, the trial court has broad discretion to divide marital property in a fair and equitable manner. Wood vs. Wood, 283 Ga. 8, 655 S.E.2nd 611 (2008) (decision of trial court to award wife all of her pension was not abuse of discretion). See also, Fuller, supra (“an equitable division of marital property does not necessarily mean an equal division”). Also, either party can demand a jury trial on the division of marital property.

Special circumstances. If your spouse owns his or her own business or is a partner or member or owner in a corporation or partnership, then this business interest must be addressed. See Dividing a Business in Georgia Divorce. Also, if a 401(k) retirement account is to be divided, a Qualified Domestic Relations Order must be used. See Dividing Retirement Accounts in a Georgia Divorce.

If you are dealing with a property division fight, you need to engage the services of a qualified Atlanta divorce attorney to handle these matters. Attorney Russell Hippe has experience dealing with property division trials, the division of businesses, professional practices, and complex assets. He commonly drafts QDROs and oversees the division of retirement accounts.