Generally, No.  Sometimes couples just want to get divorced and deal with the details later.  A judge is not supposed to accept an agreement that fails to address all of the terms essential to a divorce. In fact, unless you do address all of the necessary issues you won’t really have an agreement. Even one provision which provides that the parties will decide something at a later date, an “agreement to agree,” will make the entire settlement agreement unenforceable.  A court cannot accept and incorporate into a divorce decree an incomplete and unenforceable settlement agreement.

The short answer is no.  There are no Georgia divorce laws which specify how any particular asset is to be divided.  Asset and debt division is legally required to be equitable (fair).

The slightly longer, but still rather short, answer is that to the extent contributions to those plans were made while you were married then they are not solely your spouse’s retirement plans – they are marital property subject to division.

The even longer answer is that depending on what other marital assets and debts you have; you might want or need more or less than half of the retirement plans.  For example, if you would rather have 25% of the retirement plan and keep 100% the marital home (or the condo at the beach or the brokerage account, etc.) and you and your spouse agree that’s fair, then you can do that.  Each asset has its own characteristics (pros and cons) and how all of those features fit together depends on your particular circumstances. 

Transfers between spouses, or former spouses, “incident to divorce” are not taxable in most circumstances. This rule also applies to transfers pursuant to a separate maintenance action.  The spouse who receives a particular asset will eventually have to deal with any tax implications of owning that asset. When dividing assets you and your spouse should look at the tax implications of the proposed division, in particular, the difference between the fair market value of an asset and its tax basis when evaluating whether there is an equitable division of marital property. In negotiating settlements, the parties are free to discount property value based on built-in tax liability associated with an asset.

A judge looks at everything submitted to the court, hears all of the testimony at trial, and applies Georgia divorce law to make a decision.  At the end of a divorce trial, a judge will issue an order which states how assets will be divided, how much, if any, alimony will be paid, where children will live, and how major decisions will be made for your children.

What that order will not automatically include are any reasons WHY the judge decided what he or she did.  Each judge knows the law about equitable division, alimony, child support, custody and parenting time, but each judge also brings their own biases, strengths, weaknesses, and experience to the bench.  They also bring their opinion about your lawyer and your spouse’s lawyer into the courtroom.  They will likely also form an opinion about you and your spouse.  All of these things factor into why the judge will make a certain decision.

Spouses generally aren’t responsible for any student debt the other spouse incurred before their marriage, however, if one spouse co-signs the other’s private student loan, he or she is legally bound to repay the loan unless you can obtain a co-signer release from the lender.

Generally, the decision about who keeps the house is based on the reality of who can afford to pay for it after the divorce. Couples often fight over a house only to come to the realization that neither party can afford to keep it after divorce.  We suggest you use the Marital Balance Sheet and Monthly Budget included in the MDO Divorce Settlement Tool to determine early on whether you can afford to keep the house.  If you can’t, do not waste time, money, and energy fighting for something you will have to sell soon after the divorce.

If neither of you can afford to own the house, then putting it on the market and agreeing how to divide the sales proceeds is a common way to divide this asset.  If you or your spouse do decide to keep the house your settlement agreement should address joint ownership of the house, and clarify responsibility for the mortgage or other debt on the home, taxes, insurance, and other  expenses.

Very often spouses own the marital home jointly and are both on the mortgage.  In this case, if one spouse transfers their ownership interest in the house to the other, that does NOT automatically remove that spouse from the mortgage.  Both spouses will still be liable for repayment of the mortgage until one spouse refinances the mortgage or sells the property and pays off the loan.

Another option is to allow one spouse to temporarily use the home after the divorce to minimize disruption in the lives of the children.  An agreement to delay the sale of the home should be detailed in the settlement agreement including the length of any delay, the method by which you will sell the home, who will be responsible for mortgage payment and upkeep on the home, and who will get the tax deduction for the mortgage.

It is possible for a judge to order your spouse to pay you alimony from his or her separate property.  Also, a judge can take into consideration the amount of your spouse’s separate property when equitably dividing your marital property.  You won’t know for sure, but it might be that the judge awards you more marital property than he or she would have in the absence of your spouse having separate property. The judge’s final order will not say why he did what he did unless your lawyer asks for the judge to include this information.