Is Georgia a Community Property State?

Georgia is not a community property state. This means that during divorce, the spouses do not automatically split the marital assets 50/50. Instead, Georgia courts follow an equitable distribution approach for property division following a separation. 

Equitable means fair, and fair doesn’t always mean equal. In some cases, an equitable distribution of property will result in an equal split. However, certain factors may lead the court to award a bigger share of the estate to one spouse.

If you have any questions about a property division issue for your divorce in Georgia, make sure to consult a qualified divorce attorney as soon as possible. They will guide you through the process and help you avoid costly problems later on. 

How Does Equitable Division Work?

When determining property division for divorce proceedings, the Georgia family court will first identify which assets are marital property and which ones are separate property. Only marital property is subject to equitable division. Separate property, or property brought by each spouse into the marriage, isn’t considered part of the marital estate and won’t be divided.

Equitable division, unlike equal distribution, does not mean that the marital property is divided equally between the spouses. Instead, property is divided in a way that produces a fair or equitable outcome for each party. 

Some of the factors that are considered by the court when coming up with a fair distribution include:

• Length of the couple’s marriage
• Whether either party has prior marriages 
• Each party’s age and health
• Each party’s occupation and sources of income
• Each party’s skills and employability
• Debts and liabilities.

What is Considered Marital Property in a Divorce in GA?

Marital property refers to all property acquired by the spouses during the marriage, no matter how the property is titled. Non-marital property or separate property, as mentioned above, consists of property acquired by one spouse before the marriage. Assets that are acquired as inheritance or gifts during the marriage are also considered separate property.

Some examples of assets that are considered as marital property are the following:

• The marital home
• Real estate, vehicles, stock, and bonds purchased during the marriage
• Gifts from one spouse to the other that were purchased using marital funds
• Insurance policies and business interests obtained during the marriage
• Vested or unvested retirement benefits such as pension plans, IRAs, and 401(k)s. However, because this type of asset can be difficult to divide, the court may issue a qualified domestic relations order (QDRO) to divide it into two separate accounts – one for each spouse.

The court may consider individual property as marital property partially or fully if there’s a commingling of assets or if the other spouse contributed to the asset’s growth or continued existence. 

How Do Courts Divide Marital Property in Georgia?

After deciding which assets are marital property, the court has complete discretion in awarding them to either spouse. The court is not bound by predetermined formulas or rules, unlike those in community property states. The judge will divide the property in any proportion that they deem to be fair, after considering the specific circumstances of the case.

During property division cases, the court takes into consideration the following factors to ensure equitable division:

• Marital fault
  Although Georgia is a no-fault divorce state, spouses are allowed to file for divorce on certain grounds. When the fault of an offending spouse has been established, the judge may decide to grant a greater portion of the marital estate to the injured spouse. For example, if it’s proven that one of the spouses committed adultery and spent marital funds on their lover, the court may decide to award the other spouse a bigger share of the estate to compensate for the improper use of these funds.

• Earning capacity and sources of income
  The court shall also take into account each party’s earning capacity and relative incomes. One spouse may be awarded a greater portion of the estate to make up for their lower economic prospects.

• Child custody
  If only one spouse has full custody of the children, they’re more likely to receive a larger portion of the marital estate. They may even be awarded certain assets, such as the family home, to protect the best interests of the child.

• Non-monetary contributions
  Statutory law also requires the judges to consider the non-monetary contributions of either spouse to the marriage for property division cases. Some examples of non-monetary contributions are child care, household chores, and professional support for the other spouse.

How is Debt Divided in a Georgia Divorce?

One common misconception is that the party who took on the debt must be the one who assumes liability for it after the divorce is finalized. However, this isn’t always true. 

Because Georgia is an equitable distribution state, the judge may decide, given the circumstances surrounding the case, that it is more equitable for both parties to split liability for the debt equally. 

Here are some factors that the court will take into account when deciding whether debt should be considered a marital or separate obligation:

• Timing
• The type and amount of debt
• Whether the debt has benefited both parties.

If you’re unsure about whether you’ll have to take on this kind of burden after getting divorced, it’s best to speak to a lawyer. They can help answer your questions and make sure you’re making the right decision for your finances and your future. 

Am I Responsible for My Spouse's Debts If We Divorce in Georgia?

It’s possible that a divorced spouse will be partially responsible for a debt that their ex-spouse incurred in Georgia. Like assets, debts can be separate or marital. Debt that either spouse incurred during the marriage is normally considered marital debt and will likely be split between the spouses – even if only one spouse’s name is associated with it.

When a couple divorces in Georgia, there are two main categories of marital debt that need to be divided:

• Joint debts – These are debts held in both spouses' names like joint credit card debt, mortgages, and loans.
• Individual debts of a marital nature – These are debts in only one spouse's name but incurred during the marriage for family or household purposes.

Will I Be Responsible for My Ex-Spouse’s Student Loans?

In some cases, a divorced spouse will be partially responsible for their ex-wife’s or ex-husband’s student loans. This can happen if the person who took out the loan went to school during the marriage and convinces the court that their schooling was to improve the financial situation of the household. If the judge agrees with this, they will include the student loan as a marital debt to be divided in Georgia.

Can Creditors Come After Me For Joint Debts in a Divorce?

It’s crucial to note that divorce decrees do not supersede contract law with creditors. If you are a co-signer or jointly liable on any of your spouse's debts, you remain responsible for those debts to the creditor regardless of the divorce settlement. Even if the divorce decree assigns full responsibility for a joint debt to your ex-spouse, the creditor can still legally pursue payment from you if the responsible party defaults.

In summary, yes, you can potentially be on the hook for your spouse's debts in a Georgia divorce. Your best option is to work with a divorce lawyer to try to remove your name from any jointly held debts during the divorce process. You may have feasible options such as refinancing mortgages and loans or transferring balances to new accounts in one spouse's name only.

Who Gets the House in a Divorce in Georgia?

A marital home is considered as marital or joint property. It will be divided per the state’s principles of equitable division.

If there are children, the court may decide to award the home to the parent who primarily lives with the child (the custodial parent). The court will also take into account which party is able to provide a stable home for the child.

In certain cases, the court may assess the financial prospects of the couple and may order the house to be sold as soon as possible, with the proceeds divided between the spouses in proportions stipulated in the divorce decree.

Do Couples Need to Go to Court for Property Division?

No. Contested divorces often come with heavy costs and emotional stress, so it’s not unusual for divorcing couples to want to avoid them. Spouses can, instead, choose to negotiate property division outside of court and just sign a written agreement.

A divorce settlement is the fastest way to resolve property disputes. However, not all couples can agree on all the issues in their case. If they’re unable to resolve certain issues on their own, they can then go to court and ask a judge to decide for them. 

Contact a Georgia Divorce Lawyer Today

During divorce proceedings, you want to make sure that your rights are protected and that all of your assets are properly categorized and accounted for. An experienced divorce lawyer will negotiate and fight for your interests to ensure optimal property division.

Family law attorney Sharon Jackson has nearly 20 years of experience handling complex property division settlements and trials. Contact us now at (678) 909-4100 to discuss your divorce case.