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Dividing property and debts in a Georgia divorce
Summary
Georgia divides marital property "equitably," which means fairly, not necessarily equally. If the spouses can't agree, a judge, or a jury if one is requested, decides, and has broad discretion.[1]
Only property acquired during the marriage is divided, so property a spouse owned before the marriage generally stays separate. So do gifts from someone else and inheritances one spouse received, even during the marriage.[2]
Debts taken on during the marriage are divided too. But the divorce decree doesn't bind the lender: if your name is on a loan or a joint credit card, the creditor can still collect from you, even if the decree says your ex will pay it.
What counts as marital property
- Generally, the property and assets either spouse acquired during the marriage.[2] That can include, for example, a house, cars, bank and investment accounts, retirement savings and a business started during the marriage.
- Whose name is on the title or account doesn't settle it by itself.[3] Whether something is marital or separate can be a question of fact for the judge or jury.[4]
- Georgia isn't a community property state, so marital property isn't automatically split 50/50.
What generally stays separate
- Property a spouse owned before the marriage, since only property acquired during the marriage is divided.[2]
- Property one spouse received during the marriage as a gift from someone else, or as an inheritance.[2]
- A gift of marital property from one spouse to the other, though, generally stays marital property.[2]
- Growth in value of separate property can go either way. If it grew only because of the market, the growth generally stays separate. If it grew because of either spouse's efforts during the marriage, the growth can be marital.[2]
- Separate property can become partly marital when marital money goes into it. For example, if marital money pays down the mortgage on a house one spouse paid for with separate money, the added equity can be divided. Property can be part separate and part marital, in proportion to what each source contributed.[5] Keeping records of where money came from helps.
- Separate property can also become marital if a spouse gives it to the marriage, for example by putting a premarital house in both names. That can be treated as a gift to the marriage, though it can be disputed.[3]
How a judge decides what's fair
An equitable division is a fair one, not necessarily an equal one, and the decision is left to the judge's or jury's discretion.[1] There's no fixed formula. The conduct of the spouses, both during the marriage and in causing the divorce, can be considered.[4]
In a contested divorce, either spouse can ask for a jury by filing a written demand on or before the time the case is called for trial. Otherwise the judge decides.[6] If a jury divides the property, the court enters a decree that carries out the verdict.[7] Alimony is decided separately from the property division, though the two are often negotiated together.
Debts
- Debts taken on during the marriage can be divided as part of the equitable division. A judge can, for example, make one spouse responsible for the payments on a car loan both spouses signed.[1]
- The decree changes what the spouses owe each other, not what they owe the lender. A creditor can still collect from anyone whose name is on the loan or account, unless the creditor released them or the loan was refinanced without them.
- If you were only an authorized user on your spouse's credit card, you're generally not responsible for the balance. If it's a joint account, you are.
- Taking your name off a title doesn't take it off the loan, and sending a creditor your divorce decree doesn't end your responsibility on a joint account.
- That's why agreements often require a spouse to refinance a loan into their own name by a set date, or to sell the property, and close or separate joint credit cards.
While the case is open
- When property division, support or alimony is at issue, each spouse fills out a sworn financial affidavit listing income, expenses, property and debts, and serves it on the other side at least 5 days before a hearing.[8] Leaving something out of a sworn form is a serious problem.
- Some courts issue a standing order in every family case. DeKalb's, for example, limits selling or getting rid of property outside the ordinary course of business while the case is open. Read any order you receive before moving money or selling anything.
- Make a list of everything you own and owe, with rough values, and gather statements. It makes the affidavit, mediation and any negotiation easier.
If you agree on how to divide things
Many couples divide their property and debts in a written settlement agreement. If the judge approves it, it becomes part of the final decree, and the property and debt division is generally final, so make sure the agreement covers every account, vehicle and debt.
A prenuptial agreement can change how property is divided. In Georgia it has to be in writing, signed by both spouses and witnessed by two people, one of them a notary.[9] Even a properly signed agreement can be challenged. The spouse relying on it generally has to show it wasn't the result of fraud, pressure or hidden facts, isn't unconscionable, and wouldn't be unfair or unreasonable to enforce now.[10] Whether a particular agreement holds up is a question for a lawyer.
Questions you might ask a lawyer
- Which of our assets are marital, and which might be separate?
- Did any of my separate property become partly marital?
- How should our debts be split, and how do I protect myself on joint accounts?
- Do we need an expert to value a business, a pension or real estate?
- Does our prenuptial agreement, if we have one, hold up?
Common questions
Is Georgia a 50/50 state in divorce?
No. Georgia divides marital property equitably, which means fairly, not necessarily equally. If the spouses can't agree, a judge or jury decides what's fair in their situation.[1]
Is an inheritance marital property in Georgia?
Generally not. Property one spouse inherits or receives as a gift from someone else during the marriage generally stays that spouse's separate property. If it grows in value because of either spouse's efforts, that growth can be marital.[2]
Who pays the credit card debt after a divorce in Georgia?
The judge or the spouses' agreement can assign each debt to one spouse. But that doesn't bind the credit card company: if it's a joint account, the company can still collect from both of you. An authorized user generally isn't responsible for the balance.
Does it matter whose name is on the title?
Not by itself. Property acquired during the marriage can be marital even if it's titled in one spouse's name.[3] Whether it's marital or separate depends on the facts, and can be decided by the judge or jury.[4]
Sources
- ^ Partridge v. Partridge (Ga. 2015), equitable division and marital debt (Justia)
- ^ Avera v. Avera (Ga. 1997), marital and separate property (Justia)
- ^ Coe v. Coe (Ga. 2009), title and gifts to the marriage (Justia)
- ^ Wood v. Wood (Ga. 2008), title, conduct and property division (Justia)
- ^ Hubby v. Hubby (Ga. 2001), marital money paying down a mortgage (Justia)
- ^ O.C.G.A. § 19-5-1, jury trials (Justia)
- ^ O.C.G.A. § 19-5-13, carrying out a jury's property verdict (Justia)
- ^ Uniform Superior Court Rule 24.2, financial affidavit
- ^ O.C.G.A. § 19-3-62, requirements for prenuptial agreements (Justia)
- ^ Dove v. Dove (Ga. 2009), when a prenuptial agreement is enforced (Justia)
- Consumer Financial Protection Bureau, debts after a divorce
- DeKalb County standing order for domestic cases (PDF)
Laws and court rules change. If something here looks out of date, email help@divorce.city.