Basics of Dividing Marital Property
One of the major issues to be resolved in a divorce is the division of assets. Many of people have heard the term “community property” in the movies and on TV. Some states follow the principles of “community property,” and some states focus on how the asset is titled. However, for divorce cases, Georgia law uses a hybrid of these two theories, which is called “equitable division of property.” Equitable division of property is a two-step process. The first step is to determine exactly what is the marital estate. The second step is to equitably (or fairly) divide that estate between the two spouses.
In determining what exactly is the marital estate, envision all of the assets put in a big pot. It doesn’t matter how the asset is titled. To begin with all of the assets titled in the husband’s name, in the wife’s name, and titled jointly will be placed in the “pot.” Then, there are three ways to take an asset out of the “pot.” If an asset is (1) premarital, (2) inherited, or (3) gifted solely to one spouse, then that asset will be removed from the pot and will not be subject to equitable division of property.
It is common for some assets, such as a house, to be partially a premarital asset and partially a marital asset. For example, let’s say one spouse owned a house for a few years before the parties were married. Then, after the marriage, the parties lived together in the house, using marital funds to improve the house, maintain the house, and pay down the mortgage on the house. In this scenario, it doesn’t matter if only one spouse’s name is on the deed because the house will have some equity that is premarital and some equity that is marital and subject to equitable division.
After specifically determining the marital estate, the second step is to “equitably divide” the marital estate. Under Georgia law, there is no specific formula that you can type into a computer and the answer of “equitable division” will come out. Equitable means fair. Many people have many differing ideas as to what is “fair.” If the parties cannot agree as to what is a fair division of their assets, then a judge or a jury will determine what is fair for them. In determining what is a fair and equitable division of marital assets, the trier of fact is to consider conduct during the marriage. The trier of fact will consider good conduct like hard work or sacrifice and bad conduct like adultery or abuse. However, more often than not, most divorcing couples eventually agree to divide the marital estate in a 50/50 fashion.
A final word of advice—do not use your attorney (and your legal dollars) to divide up your “pots and pans” or your furniture. By the time you pay your attorney to fight for these items, you could have bought all new stuff. An effective way to divide household items, without the lawyers, is to make three lists. The first two lists are the items you agree will be “his” and “hers.” The last list is the items that you cannot agree upon. Then, flip a coin to see who gets to pick from the list of disputed items first, and take turns picking until it is all divided. Finally, provide the new “his” and “her” lists to the lawyers to attach to the agreement.