Uncontested Divorce in Georgia: Separate vs. Marital Property | Uncontested Divorce Attorneys in GeorgiaWhen going through an uncontested divorce in Georgia, there are many issues that need to be resolved before the uncontested divorce can be finalized by the court.  Apart from child support, custody, and alimony issues that need to be settled, there also has to be a division of property between the divorcing spouses.  In the state of Georgia, there has to be an equitable division of property and assets.  Equitable does not mean equal; rather it mean that the any marital property should be divided fairly.  And it a judge has to decide what is “equitable”,  it might be much different from what the parties may have agreed to on their own in an uncontested divorce.  And the court will usually approve what the parties agree to in a signed, dated and notarized uncontested Divorce Settlement Agreement.  While an “equitable” division of marital property does not mean equal, an equal division of marital property is usually considered the standard and default position unless the court is persuaded otherwise.  Therefore, most parties in an uncontested divorce are advised by experienced attorneys to first consider an equal division of marital property before totally rejecting the idea.  Below is a discussion of marital property and separate property in the context of a Georgia uncontested divorce.

Marital and Separate Property

Marital property can be defined as any assets that or debts that a couple acquired during marriage or purchased with marital money, any money in a joint checking account is marital property.  There is some property that that can remain separate property of only one of the spouses, this includes any property owned by the spouses prior to the marriage, property acquired during marriage as a gift (this does not include gifts from the other spouse), or an inheritance.  Also, if any property is purchased with money that is not marital money or is exchanged for separate property, if any separate property produces earnings or if it increased in value, these are considered separate property as well.  It is also possible to convert separate property into marital property by changing the ownership from sole to joint while married.  Under Georgia law a spouse’s separate property will remain his or hers.  See O.C.G.A. § 19-3-9.  However, in the context of an uncontested divorce, the parties can also agree to divide separate property, which is a strategy sometimes used to offset the equity in a marital residence so it does not have to be sold.  In regard to separate property, a well drafted Divorce Settlement Agreement should include the following language (or something similar) in the agreement:

Each party agrees that pursuant to Georgia law, “property acquired during the marriage by one spouse by gift, inheritance, bequest or devise remains the separate property of the recipient spouse and is not subject to equitable division.” Armour v. Holcombe, 288 Ga. 50, 51 (2010), citing Avera v. Avera, 268 Ga. 4 (1997). Accordingly, each party shall retain possession and ownership of any property acquired by gift, inheritance, bequest or devise, free and clear of any claim or rights of the other party.

Commingling of Separate Property

There is also the possibility of commingling, which is when separate and marital property are mixed, for example, if one of the spouses has their own bank account but the other spouse deposits money into it, it then becomes marital property; it is possible to still argue that it is separate property but that might involve backtracking through some financial records.  Should there be a situation in which there is an asset that both of the spouses contributed and it increased in value; the way to determine how it will be divided is the source of funds rule.  The source of funds rule typically divides an asset or its value depending on the contributions made to it.  An example would be a home that the one of the spouses bought before being married; then later moved in with the other spouse and even later sold it for an increased value.  The court would look at how much was paid prior to the marriage and how much had been paid during the marriage, the amount paid by the spouse before marriage would be considered separate property while the remainder is considered marital property.

Figuring out how to Divide the Property

Once the property has been classified, it is time to divide it between the spouses.  One way of doing is to figure out the value of the property and selling it, the spouses would then divide the proceeds between them fairly. Another way is to assign items to each spouse.  It is also possible for the divorcing spouses to hold a property together, although this option will keep the spouses interacting due to continued monetary involvement.  Alongside property, any debts must also be divided; these include mortgages, credit card debts, or car loans.  It is also important to classify debt before division due to the possibility that debt can also be either marital or separate property.

If the Parties Cannot Reach an Uncontested Divorce Settlement Agreement

Should the spouses be unable to fairly divide the property through an agreement (uncontested Divorce Settlement Agreement), it will be divided for them by a judge.  Since there is not set pattern on how to divide property, the judge will take many factors into consideration such as length of the marriage, well being of the spouses, type and value of the property, living arrangements of any children involved, standard of living during the marriage, the needs of the spouses, and the contributions of the spouses either to each other or the property.  There are also other circumstances that may influence property division.  For example, the shorter the marriage, the more likely it is that the court will attempt to put each of the spouses in the state closest to the one they were prior to marriage.  Likewise, in a longer marriage, the more likely the court will consider the majority of assets in dispute to be marital assets and not separate property.  If one of the spouses is concerned about their property, it should be addressed before the marriage; it can be made clear who will get one in the case of divorce with a prenuptial agreement.

Obtaining Legal Help in Georgia

If you are facing an uncontested divorce and need help dividing assets and putting the terms into an uncontested divorce agreement that the court will accept and approve, call us today at 470-947-2471.  Our Georgia uncontested divorce attorneys have helped hundreds of clients in similar cases and we can help you to.  Contact >

Updated: 2019-08-07