Clayton County Marital Property Division Lawyer Helping You Protect Your Assets
The division of marital property is one of the most important aspects of the divorce process, and Georgia law has specific rules for how this is handled. The courts will need to determine what is considered marital property and what is separate property, as well as what an equitable distribution of the assets would be. Each situation is unique, so it’s important to get legal counsel from a knowledgeable attorney who has experience with the Georgia property division statutes. While well-meaning, friends and family can be incredibly misguided in this area and even lead you to make decisions that could have legal consequences later on.
Property division can be complex, and it’s important to understand which laws apply to your case. If you aren’t sure what might qualify as marital assets or how to ensure that you get your fair share, call Lunn Law LLC to speak with an attorney.
What Is Equitable Distribution?
Equitable distribution refers to the way that the state of Georgia decides property division in a divorce. While some states are community property states, meaning the parties must split all assets and debts, Georgia operates under an equitable property division expectation. This means that instead of a straight 50/50 split of every asset, financial account, or debt, the state strives for the parties to get a fair settlement when taking into consideration all of the contributing factors.
Some of these factors include:
- The total value of assets, including property, investment accounts, cash, etc
- The duration of the marriage
- How the parties financially contributed to the marriage
- The financial stability and earning potential of each party
For example, an equitable property division may be that one party gets the marital home while the other gets more cash from the joint accounts.
What Is the Difference Between Marital and Separate Property?
When you are looking at property division, it’s crucial that you understand what is considered marital property and what is considered separate property. In many cases, it comes down to when the property was acquired, but it isn’t always this simple.
Marital property includes any of the marital assets that both parties own. Most commonly, this means that the property is in both parties’ names. However, it can also extend to accounts and assets that are only in one person’s name if it was acquired after the marriage or were used jointly during the marriage. For example, a retirement account is in one person’s name, but this could be considered a marital asset if the account was opened after the date of the marriage. This is because the funds would have been used to support both parties in the future had they not divorced.
In property division cases, separate property refers to property that is not part of the settlement. This generally refers to property acquired before the marriage, such as bank accounts or real estate holdings. Inheritances are also usually considered separate property and not subject to asset division. If you have a prenuptial or postnuptial agreement in place, this document can also specify the property that is to remain separate from the individuals and not be divided as marital property.
Can the Parties Agree on How the Property Is Divided?
While many property division cases have to be decided by the judge, it’s easier, faster, and generally less expensive if the parties can agree on the division of marital property outside of court. This can be done through a prenuptial or postnuptial agreement already in place — in which case, the parties just ask the courts to enforce the agreement. But it can also be done through mediation. If the parties aren’t able to agree, the judge will make the determination on what is a fair and equitable property division settlement based on the evidence and arguments presented and the Georgia statutes.
What Happens If There Is a Prenuptial or Postnuptial Agreement?
While prenuptial agreements used to be reserved for the very wealthy, they have become more commonplace in marriages today. This could be attributed to the fact that the average age of marriage is much older than in previous generations, which means that the parties are more likely to have already accumulated investments and assets before marriage. Many people also opt for a prenuptial agreement if it isn’t their first marriage. In this case, a prenup can ensure that assets are separated to be left to the children from the first marriage, for example. Postnuptial agreements serve the same purpose as prenuptial agreements; they are just drafted after the marriage instead of before it.
If you have a prenuptial or postnuptial agreement, it simplifies the equitable division of marital assets in most cases because the decisions have already been made. Generally, all that’s left is for the judge to transfer the agreement into a court order as part of the divorce proceedings.
However, there are some cases where a prenuptial agreement is deemed invalid or one party asks that it not be enforced. Common issues that can come up are that the prenuptial agreement is legally invalid, meaning it wasn’t prepared in accordance with the law and therefore the decisions therein are void. Prenuptial agreements can also be set aside if they are deemed superfluous by the courts. This can happen if there are extra things in the agreement that aren’t legally enforceable, such as that one party will always make the other breakfast.
Prenuptial and postnuptial agreements are incredibly useful legal tools, but only if they are drafted and signed properly. If you are considering a prenup or already have one in place, it’s important to talk to an attorney about how it will factor into your divorce.
Georgia law calls for an equitable division of the marital assets in a divorce, but what one person thinks is equitable might be far from another’s — and far from what the court deems is necessary. Make sure that you understand how the property division laws in Georgia apply to your case when you call our office at 770-762-4628. We can discuss the particulars of your case and help you take the next steps to protect your assets and financial future.