Under Georgia Law divorcees are entitled to an equitable division of assets in regards to joint marital property. The legal reference to the word equitable does not necessarily mean equal and any external factors relating to the divorce or divorce processes may have the ability to alter the divisions between the parties. Equitable divisions are also applied to joint marital debts and other financial obligations that occurred between the parties during the course of the marriage. Separate properties are not required for equitable divisions and likewise no separate former debt of financial obligations that were initiated prior to the marriage are subject to equitable divisions.
In the state of Georgia there is not a universal formula to determine how marital assets / property are subject to division, but the judge may take into account the following in how each individual asset is divided equitably between the parties: which party contributed to the majority of the property and maintenance of the property, the purpose of ownership by the intending parties, the length of the marriage, and the service of each spouse to contribute to the family unit financially, physically, etc. The Court may also determine factors of equitable division base on the legal reasoning of the couple’s separation. If it appears that one party was responsible for misconduct or fault that lead to the divorce the information concerning the misconduct may act against the responsible party.
Agreements Made Between the Parties:
Agreements made between the parties also known as, marital settlement agreements, property settlement agreements, or marital dissolution agreements can effectively alter the equitable division of marital properties following a divorce. Once the agreements are validated by the judge and incorporated as part of the final divorce decree then they become enforceable and prevent the necessity to distribute the properties equitably. In order to devise an agreement both parties must submit the agreement or proof of the agreement to the court for approval. Once the court receives the agreement the court will ensure that each particular term of the agreement is legally binding and specifically handles who receives the property, how it is disposed, how the property is transferred, or any time stipulations or the like that will need to be enforceable within the agreement to ensure the transactions take place. If property is unintentionally left out of a settlement agreement then the property remains joint between the parties and the division of the asset is not enforceable under court order. Agreements are generally approved by the court, but the court can deny an agreement if they feel that a term of the agreement disagrees with precedence of the court or is counter intuitive to the courts interests, minor child’s interest, or the interests of the law.
Adultery or Divorce Precipitated by Actions in Bad Faith:
Again the term equitable means fair and fair is not always synonymous with equal. If it is found that a particular party is responsible for a bad faith act that lead to the dissolution of the marriage then the person found guilty of the said act may receive significantly less in terms of the divisions than the other spouse. This principal especially applied in cases concerning adultery as it is upheld in case law Peters v. Peters 248 (1981); Waters v. Waters 280 Ga.477 (2006); and Bloomfield v. Bloomfield 282 Ga.108 (2007). Overall the court system of Georgia will favor the spouse that is innocent of the marital infraction while the guilty spouse is subjected to harsh discrepancies in terms of significantly smaller marital property awards. Also if it is found that the adulterous spouse spent joint monetary funds to support his or her paramour or support his or her relationship with the paramour then this is also taken into consideration and can lead to a disproportionate award of funds.
Assets That May Be Equitably Distributed:
Other assets may be distributed during a divorce but will generally be divided equitably in accordance to the judge’s discretion and review of all other surrounding evidence. The following is a list of potential assets that are subject to equitable division:
• Benefits for previous employers
• Retirement benefits
• Capital / loss carry over/ taxes
• Withheld / Retained Earnings
• Tax Returns
• Travelers point reward programs
• Life insurance policies
• Cemetery plots / cemetery property
• Home property, additional properties, vacation homes
• Memberships- golf clubs, country clubs, societal organizations
• Marital gifts
• Lottery winnings
• Intellectual property-copy rights, trademarks, patents, royalties
• Photographs and Keepsakes
If you are facing divorce and assets are a significant issue, it is important to speak with a divorce attorney experienced in complex assets issues. Call 770-408-0477 to speak with one of our experienced divorce and asset attorneys today.