In Georgia as in all states, parties to a divorce are always free to reach their own agreements regarding property division. If the couple cannot agree, either a judge or jury determines the division of assets according to Georgia law. Georgia is an equitable distribution state, meaning that property is divided on the basis of what is "fair" between the parties. This does not always result in an even 50/50 division.
Only property considered marital property is subject to division in Georgia. All other property is deemed non-marital property and remains with the spouse who acquired it. Marital property generally includes all items obtained during the marriage, regardless of whose name is on the title. Non-marital property covers any items acquired before the marriage as well as inheritances and gifts devised to one spouse only.
Unlike many states, Georgia law does not specify what factors a judge or jury might take into account when determining how to divide marital property. However, because the objective is fairness, factors considered could include the age and health of the parties, the earning capacity of each spouse and the length of the marriage. In addition, non-monetary considerations, such as one spouse passing up a career to stay home and care for the children or one spouse supporting the other while he obtained an education, could have relevance to the division ratio.
Additional concerns come into play regarding the marital residence. Because the actual division of a home is not practical, the judge or jury could order that the parties sell the home and divide the proceeds. Another option is awarding the home to one spouse and offsetting that amount with other property, such as automobiles or an art collection, given to the other spouse. If minor children are involved, the court must also take into consideration what is in their best interests, which requires the court to look at the children's adjustments to home and school. If one parent is ordered primary custody, the court might decide to award the home to that parent in an effort to avoid disruption in the children's lives resulting from a move.