A common question from clients in a divorce case is, “why do we have to divide property that is not in both of our names?”
Many people ask this question because they don’t understand the concept of “marital property.” In Georgia, the parties to a marriage are considered one unit. Therefore, all assets and debts acquired during the marriage are marital debts and marital assets, with few exceptions. It includes just about everything, from a kitchen timer to savings accounts and credit card debts. So when a divorce occurs, both parties usually have a claim to their share of the property, regardless of which spouse’s name the property is in, who purchased it, or who acquired the debt.
The surprising thing for most people is that the marital property includes checking and savings accounts even if the bank accounts were not opened as “joint accounts.” Just because one spouse’s name is on the account, does not mean the other spouse has no right to the funds in that account under the law. So even if one spouse put their paycheck into an account that is only set up in their name every month, it is still marital property. And because it is marital property, both parties have a right to claim a share of it. This also includes homes. Even though only one party may be on the deed, if the home was purchased during the marriage then it should be considered divisible marital property.
How the marital property should be divided is a question for the Court if the parties cannot agree how to divide it up themselves. In Georgia, there is no automatic 50-50 split of marital property. The standard used by the Courts is “equitable division.” This is a fancy legal term that essentially means “fairness.” I tell my clients that it means a “fair division” of the property. While many property divisions end up being roughly a 50-50 split, the Court has the option to award more, or less, than 50 percent to either spouse. Often the debts will be divided in a divorce to roughly reflect the current earnings of the parties, or their earning potentials. So if one spouse makes considerably more than the other spouse, they may be ordered to pay a higher percentage of the marital debt. Knowing this is often a decision Judge’s make if there is a dramatic difference in earning power of the spouses, the parties will often agree to a higher or lower percentage of the debt when they are attempting to settle the case without a trial.
The most common exceptions to these rules are gifts and property acquired prior to the marriage. Gifts, such as an automobile, monetary gift, or inheritance provided to one spouse may not be divisible property. Also, property the spouse acquired prior to the date of the marriage may not be divisible. It is not always clear whether property fits one of these categories and this is often a point of litigation in a case. For instance, a gift of $10,000 claimed by one spouse, may be argued as a “gift to the marriage,” and therefore divisible, by the other spouse. Even if property was acquired prior to the marriage, the other spouse may get credit for contributions made toward that property during the marriage. This often becomes an issue when vehicles are purchased prior to the marriage, but payments are made on the loan during the marriage. The other spouse may be able to claim credit for contributions that were made toward paying for the car during the marriage. Another common exception is jewelry. The engagement rings or wedding rings given by the spouse in exchange for marriage are usually considered “gifts in contemplation of marriage” by the Court, and therefore not divisible. That also means they do not have to be returned to the spouse who purchased them.
There are other exceptions to marital property recognized by Georgia law, but they are few and far between. It often takes an experienced Georgia family law attorney to review the property in a case and advise a client on what may and what may not be divisible. Clients also need to understand what their rights to property may be, before they agree with their spouse who is getting what out of the divorce. They may assume they don’t have a right to certain property, if an attorney is not advising them on what the marital property is.
If you are experiencing a divorce in Georgia, call to speak with one of our experienced family law attorneys at (912) 401-8880 or fill out the consultation form.