How is Property Divided in Divorce in Georgia?

A common issue that needs resolution in divorce cases is property division. Laws dictating how property and debts will be divided vary from state to state. In Georgia, marital property is divided equitably, and we explain how in this article. If you need legal advice for your specific situation, please consult our experienced divorce attorney.

Is Georgia a Marital Property State?

Georgia is an equitable distribution state, which is different from a community property state where all marital property is equally divided between the spouses. 

In an equitable distribution state, the court divides the couple’s marital assets fairly – but this doesn’t always mean an equal division.

Property Division in Georgia Divorce

Property division in a Georgia divorce begins with an inventory of the couple’s assets. They’re then classified as either marital or separate property. 

Here’s a quick explanation of the difference between the two:

• Marital Property: Generally, all property acquired by either of the spouses while they were married to each other is considered marital property. Some examples include:
  • Marital home
  • Gifts from one spouse to the other
  • Cars purchased during the marriage
  • Retirement accounts accrued during the marriage.
• Separate Property: Generally, all assets that are acquired by either spouse before the marriage are considered separate property. This also includes:
  • Inherited property that is specifically willed to one spouse, even if obtained during the marriage
  • Gifts from third parties, even if obtained during the marriage.

During the divorce process, only marital assets are divided between the spouses. Each spouse’s separate property will remain solely theirs.

Georgia courts are not bound by predetermined formulas or rules in deciding how to divide marital property. Because they’re “courts of equity,” they are given complete discretion to distribute property according to the given circumstances of each case. 

Courts, in general, depend on certain factors to decide what would be a fair and equitable distribution. Some of these factors are each spouse’s income and earning capacity, alimony award, separate property, conduct towards each other during the marriage, and future needs.

Who Gets the House in a Divorce in Georgia? 

When deciding how to divide the marital home during a divorce, a Georgia court will consider several factors. The judge may consider, for instance, whose name is on the deed and any investment of separate property to purchase, build, or improve the marital home.

There are three possible ways to divide a marital home in Georgia:

1. Buy-out: One of the spouses may decide to continue living in the home to raise their children. They may decide to buy out their former spouse’s share in the home.
2. Sell: This is, undoubtedly, one of the easiest ways to divide and dispose of a marital home. The couple can choose to put the property on the market and divide the proceeds of the sale. Selling allows both parties to completely separate their finances and avoid future entanglements. There are other considerations that may make it impractical for the couple to sell, so consult with a trusted divorce lawyer before taking this step. 
3. Joint ownership: While it’s unlikely for a divorcing couple to want to stay in the same home, they may decide to retain joint ownership of the property. One of the spouses may choose to continue living inside the marital home, while the other lives elsewhere. However, the latter will still need to make mortgage payments and contribute to any repair costs so the house can continue building equity.

How Do You Split a Mortgage in a Divorce in Georgia?

Similar to the question of who gets the house in a Georgia divorce, when splitting a mortgage in a divorce in Georgia, there are typically three main options:

One spouse keeps the home and buys out the other's equity.

This involves one spouse refinancing the mortgage into their name alone and paying the other spouse their share of the equity in the home. For example, if there is $100,000 in equity, the spouse keeping the home would get a new mortgage to pay off the existing mortgage and give the other spouse $50,000 for their half of the equity.

The home is sold and the proceeds are divided.

The couple sells the home, pays off the outstanding mortgage balance, and then splits the remaining equity. This is a common solution if neither spouse can afford or wants to keep the home.

The couple continues co-owning the home temporarily.

In some cases, the couple may decide to keep co-owning the home for a period of time after the divorce, perhaps until children are out of school. The mortgage payments and equity would continue being split between them.

Regardless of which option is chosen, Georgia is an "equitable distribution" state. This means the court will aim to divide the home equity fairly between the spouses, though not necessarily 50/50, based on factors like income, earning potential, and financial needs.

The cleanest solution is usually for one spouse to refinance and buy out the other's share. This allows for a complete separation of the formerly married couple's finances and avoids the complications of co-owning after divorce.

Contact a Georgia Divorce Attorney Today

Property division can be a contentious and emotional issue for a divorcing couple. If you and your spouse are seeking a divorce, it’s important to work with a qualified and experienced attorney. 

Your divorce attorney will ensure that all assets and debts are properly accounted for before an equitable and fair division.

At Sharon Jackson Law, we understand the need for proper representation in a divorce proceeding. We’ll help you understand all your options and ensure that your rights and interests are protected. 

Contact us today at (678) 909-4100 to schedule a consultation.