How is property divided in a divorce? The rule for marital property in a Georgia divorce is that the marital estate, assets and debts, are to be divided in an equitable manner. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. There is no fixed standard to divide property, each case will be decided on its facts, and the Georgia trial court’s discretion will not be disturbed on appeal without a showing of clear abuse.
The division of property must be graduated according to the particular facts and circumstances of each case. The court may divide jointly owned property according to the equities of the case. It may award property to one spouse that was owned during the marriage by the other spouse, it may award property to one spouse even that was owned during the marriage by the other spouse’s corporation, and it may order property sold to bring about an equitable division of Georgia marital property.
What effect does the length of the marriage have on marital property division?
Generally, property division involving a short-term marriage is relatively straightforward. When few or no joint assets have been accumulated, the tendency is to "unwind" the marriage. This means giving back to the husband and wife what each of them brought to the marriage, both assets and debts, and dividing up in some fair way the assets and debts the parties Giving back to, that is, to return the parties to the financial position in which they arrived at the marriage. The more the parties have "co-mingled" their assets, however, the more difficult this "unwinding" may become.
In distributing property after a longer term marriage, the judge's tendency will typically be to begin with something like a 50/50 division of the marital estate. They'll depart from that 50/50 standard, though, sometimes fairly dramatically, depending on their judgment about what is equitable under the circumstances.
Is there such a thing as separate Georgia marital property?
Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage. In certain cases separate property may become marital estate by a process known as transmutation.
[A]n equitable division of Georgia marital property does not necessarily mean an equal division. Goldstein v. Goldstein, 262 Ga. 136 (1) (414 S.E.2d 474) (1992). The purpose behind the doctrine of equitable division of Georgia marital property is to assure that property accumulated during the marriage be fairly distributed between the parties. Payson v. Payson, 552 S.E.2d 839. Each spouse is entitled to an allocation of the marital property based upon his or her respective equitable interest therein. Byers v. Caldwell, 273 Ga. 228, 229 (539 S.E.2d 141) (2000). Thus, an award is not erroneous simply because one party receives a seemingly greater share of the marital estate. Waters v. Waters, 280 Ga. 477, 629 S.E.2d 233 (Ga. 2006).
In determining what property is marital and what property is non marital the Georgia court will use the "source of funds" rule which is often called a Thomas Analysis.
[A] spouse contributing nonmarital property is entitled to an interest in the property in the ratio of the nonmarital investment to the total nonmarital and marital investment in the property. The remaining property is characterized as marital property and its value is subject to equitable distribution. Thus, the spouse who contributed nonmarital funds, and the marital unit that contributed marital funds each receive a proportionate and fair return on their investment.
Thomas v. Thomas Division of Marital Property
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