How to Divide Things in a Divorce in Georgia

by Beverly Bird
If you reach a property agreement, the court usually approves it.

If you reach a property agreement, the court usually approves it. Images

Georgia is one of the few states that allow for jury trials in a divorce -- at least with regard to issues of finances and property. If you and your spouse don't want to risk having a panel of your peers decide who gets what, you can opt to let a judge decide instead, or you can take matters into your own hands. You can negotiate an agreement with your spouse on your own.

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Distinguish Property Types

Georgia law differentiates between marital property and separate property when you divorce. Marital property is pretty clear cut -- it's anything you bought or earned during the marriage, regardless of whose name is on the asset. In Georgia, the cutoff date for acquisition of marital earnings or property is the date of your divorce decree, not when you might have separated or when you or your spouse filed for divorce. Separate property is anything you owned before you married, gifts made solely to you, and inheritances bequeathed to you, not to you and your spouse jointly. Only marital property is divided in divorce, but sometimes separate property can become marital property if you mishandle it, such as by commingling marital money with a premarital investment account. If it's possible that you took such a misstep with a separately owned asset, you might want to confer with an attorney and discuss your options if it begins to look like you're headed for a divorce trial.

How the Court Rules

Georgia is an equitable distribution state, so if you leave the disposition of your property to the court, it may not work out to a 50-50 division. The judge or jury distributes your property in a way that seems fair based on a multitude of factors. These include the duration of your marriage, and contributions either of you made as a homemaker. The judge or jury can weigh how much separate property you own, which might mean you don't need a full half of the marital property, or maybe you need more to sustain yourself post-divorce. The court also can consider marital misconduct committed by either you or your spouse if it ended your marriage. If the couple has children, Georgia courts lean toward giving the marital home to the custodial parent, but the non-custodial parent should be compensated with other property equal in value to his share of the equity.

Don't Forget the Debts

Equitable distribution also involves dividing marital debts. You can do this 50-50, or more disproportionately if one of you earns more income than the other. Another reason for a disproportion division might be that a certain debt was acquired solely for the benefit of one spouse. Note that your decree or marital settlement agreement does not bind third parties, such as creditors. If your spouse defaults on a debt assigned to her, and if it's a joint account, the lender still can come after you for payment. You can build language into your agreement stating that you have the right to take your spouse back to family court for reimbursement if this should occur. Another option is to transfer the balances of certain debts onto a card in the obligated spouse's sole name.

Tie Up Loose Ends

Deciding who gets what is only half the battle. If one of you keeps the house, you may still have a mortgage to deal with, just as your vehicles might be encumbered by loans. Lenders are typically unwilling to remove one spouse's name from a loan to leave the other solely responsible for paying it, which is why many divorcing individuals refinance. Retirement benefits are particularly difficult to separate, and usually require the help of a professional, either a lawyer or an accountant. If your plan is covered under the Employee Retirement System Security Act of 1974, you'll need a qualified domestic relations order to divert the non-participating spouse's share. This is a complex document, and getting it wrong could be disastrous, resulting in taxes and penalties.