One of the most challenging aspects of any divorce is dividing the assets. In the case of a high-asset divorce, there can be a lot of uncertainty surrounding the asset division, and deciding what constitutes marital property as opposed to separate property can become extremely important. At Family Lawyers of Atlanta, our attorney regularly works with forensic accountants and financial experts throughout Georgia to ensure that the property division in your divorce is fair and equitable.
Marital Versus Separate Property: What’s The Difference?
Georgia follows the equitable distribution approach to property division in divorce. Rather than defaulting to a 50-50 split of the marital property, deciding who gets what requires considering a broad range of circumstances. The ultimate goal is to reach a reasonable arrangement based on what’s fair in your unique circumstances.
But what counts as marital property? The answer is not always clear-cut, and the line between marital and separate property can become a source of dispute in many divorces (particularly high-asset cases).
Determining Marital Property In A Divorce
All property acquired by either spouse during the course of the marriage is generally considered marital property. During a divorce, all marital property will be subject to the property division process.
Separate Property In A Divorce
Separate property, by contrast, is deemed to belong only to one spouse and is common in high-asset divorce situations. Separate property generally includes:
- Property owned by one spouse prior to the marriage
- Gifts to one spouse only
- Property deemed in advance to be separate in a prenuptial or postnuptial agreement
- Appreciation or earnings from separate property
Property deemed to be separate generally isn’t divided during divorce. However, the state of Georgia is considered an equitable distribution state when it comes to asset division. While the court will not divide separate property between the parties, the court does have the discretion to take a spouse’s separate property into consideration when it is deciding how to equitably divide the assets. In other words, having separate property can still influence the overall determination of asset division.
Keeping Separate Property Separate
Property that starts out as separate can nonetheless be treated as marital property if it is not kept separate. When separate funds are commingled with marital funds, for example, it can become difficult to trace which funds (and earnings on those funds) belong to only one spouse.
Many disputes in complex divorce cases center on:
- Whether the property was separate to begin with
- Whether the property remained separate throughout the marriage
Because these issues are so complicated, it’s important to speak with a lawyer about the specifics of your case.
Frequently Asked Questions About Separate And Marital Property
At Family Lawyers of Atlanta, we know that when you are going through a divorce, there is a lot of uncertainty. We also know that when it comes to dividing property, there can be a lot of questions. Here, our attorney offers some answers to the most frequently asked questions. However, every case is different and unique. We offer free consultations so that we can answer your specific questions.
Our house is in my spouse’s name, does that mean they get to keep it?
Even when an asset, like a house, was originally in one spouse’s name, any of the asset’s appreciation that occurred over the course of the marriage would be considered a marital asset. The amount of appreciation will be divided between the spouses.
We purchased property during our marriage, but the title is only in my spouse’s name. Is that separate property?
No. Even if only one spouse has the title to the property, if it was acquired during the course of the marriage, it most likely is still considered marital property.
Can property start out as separate but become marital over the course of a marriage?
Yes. When separate property or funds become commingled with the marital money, it is much more likely that the court will ultimately decide that those funds are a marital asset. When it gets difficult to trace the funds back to the original source, those funds will most likely be deemed a marital asset.
Get Professional Guidance On Your Property Rights
At Family Lawyers of Atlanta in Atlanta, our attorney can help you determine which property is marital versus separate in your divorce case. Call 404-418-7777 to schedule a free consultation or send us an email. We have five convenient offices in Roswell, Atlanta, Marietta, Snellville and Duluth. Evening and weekend appointments are available at all locations upon request.