The easiest way to deal with property / asset division during a divorce is for the spouses to agree on how to divide the property. However, if you and your spouse cannot determine the issue up amongst yourselves, your case may have to be heard by a judge in a trial. In Georgia, all property acquired during marriage (often called as marital property) is subject to division according to the principle of equitable distribution. Equitable division does not necessarily mean equal or 50/50 division of property. Rather, it means that the court (judge or jury) will divide property fairly between you and your spouses. Sometimes an equitable division results in equal or roughly equal distribution, and other times it does not.
However, the parties can also agree out of court how to divide their assets and property in a Georgia uncontested divorce, and submit their agreement in writing as an Uncontested Divorce Agreement (signed and notarized by both parties) to the court for approval.
It is important to keep in mind that a judgment determining the equitable division of marital property is final and cannot be modified. According to Georgia law, although alimony, child support and child custody are modifiable, modification of the equitable property distribution is prohibited. So, it is extremely important that property division is done right the first time. If you or your spouse (or both) wants a divorce, it is highly recommended that you contact a lawyer in your area who can help you protect your rights during and after the divorce. Below provides an overview of how the court equitably divides marital property and whether the equitable division of property is modifiable.
How marital property is divided during divorce in Georgia
Georgia is an equitable distribution state. Equitable means fair (in other words, equitable) and fair does not always mean equal split of the spouses’ marital property. [Goldstein v. Goldstein, 262 Ga. 136 (1992)]. Courts divide only marital property, and any assets acquired before the marriage are considered separate property (also called non-marital property) and owned only by the original owner. However, the parties can agree how to divide their assets and property in a Georgia uncontested divorce, and the court will usually approve any reasonable settlement between the parties.
In Georgia, title is not controlling. Regardless of how the property is titled, it does not automatically go to the spouse with title. Although a judge or juries take title into account in dividing property, title is no longer determinative of the equitable division of property. [Stokes v. Stokes, 273 S.E.2d 169 (Ga. 1980)].
There is no bright line rule used to divide marital property in Georgia. Judges and juries rely on certain factors which may vary depending on the individual facts and circumstances of each divorce case. Common factors include:
- the duration of the marriage;
- the standard of living during the marriage;
- the economic circumstances of each spouse;
- the age and physical and mental condition of the parties;
- each spouse’s contribution to the acquisition of or enhancement of the value of marital assets;
- or each spouse’s contribution to the upbringing of their children. Not all of these factors will apply in each case but each of them can play a role in a judge’s or jury’s decision.
Is equitable division of marital property ever modifiable in Georgia?
Once a Georgia divorce has been finalized, it is generally not possible to modify the equitable division of marital property. According to Georgia law, there is no statutory basis for modifying a determination made by a judge or jury concerning the equitable division of property [Holler v. Holler, 257 Ga. 27 (1987)]. Because a judgment determining the equitable division of property is final, it is also not subject to change on the ground that either party remarries or dies. Other aspects of Georgia divorce, such as alimony, child support and child custody determination, are modifiable. It is therefore very important to thoroughly protect your property interests during the distribution of property.
Under very limited circumstances you may seek the modification of your divorce judgment (or settlement agreement) concerning equitable division. There are three circumstances under which you may potentially seek modification of divorce judgment:
- Where the court made a mistake in understanding the facts of the case or in applying the law
- If some new facts have arisen that make the original order unfair, or
- Fraud and duress
Georgia law provides that “[a] judgment may be attacked (i.e., set aside or modified) by motion for a new trial or motion to set aside.” [O.C.G.A. § 9-11-60(b)]. There must be “just cause” for a party seeking either a motion for a new trial or a motion to set aside. [Holler v. Holler, 257 Ga. 27 (1987)]. Although it is very rare that a court will grant a party’s request for reconsideration, a court may do so if the requesting party shows that the court made a mistake in understanding the facts of the case or in applying the law, or if the party claims that some new facts have arisen that make the original order unfair. The motion for a new trial must be filed within 30 days after the court enters its final order by the requesting party. [O.C.G.A. § 5-6-35(d)]. Because of the quick time limit, it is essential to consult a divorce lawyer immediately for more information.
In addition to a motion for a new trial, you may also seek to appeal the property distribution judgment or may file a motion to set aside the judgment. [O.C.G.A. § 9-11-60(d)]. Fraud is one of the bases for seeking a motion to set aside the court order concerning the equitable division of marital property. [O.C.G.A. § 9-11-60(d)(2)]. Fraud means that one party deliberately deceives the other party who acts upon and is damaged by the deception. For example, if one party deliberately lied about the exact amount of his or her assets, and the divorce judgment was based on this deceit and the other party later found out that a substantial amount of assets were hidden, that party may be entitled to have the judgment set aside. If the divorce judgment is set aside successfully, the entire divorce judgment will be set aside and the previous property awards must be returned while the case is re-tried.
Duress is another base for seeking modification of a settlement agreement concerning the equitable division of martial property. Duress occurs when one party made a threat of harm to compel the other party to enter into an unfair agreement against his or her will. In this circumstances, a court may vacate the agreement and order a different distribution of property.
To ensure that property is divided fairly during divorce, it is important to contact a knowledgeable divorce lawyer in your area who can help you protect your interests and negotiate on your behalf. As mentioned above, it becomes more important to protect your rights and interests in the first place because once your divorce case is finalized you cannot subsequently modify the judgment concerning the property division. Accordingly, it is encouraged that you consult with an experienced divorce lawyer.
Getting Sound Legal Advice for a Georgia Uncontested Divorce
If you are seeking answers to questions for your Georgia uncontested divorce, call us at 770-609-1247 to discuss your case with one of our experienced uncontested Georgia divorce attorneys.