The Basics of Division of Marital Property in a Divorce

Jonathan D. Forbes, Associate

The Basics of Division of Marital Property In A Divorce
Divorcing couples often have accumulated many years-worth of property, furniture, vehicles, and other assets. Typically, these assets need to be divided between the spouses. Georgia law provides for the equitable (“fair”) division of marital property.

How does the court determine what is equitable or fair?

An equitable division of marital property does not necessarily mean an equal division. Instead the court has broad discretion in determining the equitable division of property and considers all relevant factors including 1) each party’s contribution to the acquisition and maintenance of the property (both monetary and nonmonetary contributions), 2) the purpose and intent of the parties regarding the ownership of the property, 3) the estate of each of the parties, 4) the duration of the marriage, and 5) the contribution or service of each spouse to the marriage or family unit.

What is marital property?

Only marital property will be considered by the court in the equitable division of property. Marital property is property that is acquired as a direct result of the labor and investment of both spouses during the course of the marriage. Property to be divided may include land, homes, bank accounts, 401k and other investments, pensions, a business, and stock options. Although, for example, an account may be only in the name of one spouse it may nonetheless be marital property. It is important to think ahead to retirement when dividing marital assets, especially if a spouse has not been in the workforce for a period of time.

What is non-marital property?

Any property interest brought to the marriage by one of the marital partners that is not later commingled with marital assets may be classified as a non-marital asset not subject to equitable division. Additionally, an inheritance received during the marriage but similarly not comingled with marital assets may be classified as non-marital property. The rules regarding classifying property as marital or non-marital property are complex and it is important to consult an attorney to determine which property may or may not be subject to equitable division by the court.