Generally, marital property is any money or other property earned or acquired during the marriage. Separate property is property one spouse brought to the marriage, inherited during the marriage, or received (individually and not jointly with your spouse) as a gift during the marriage. A judge will not divide property that is proven to be one spouse’s separate property (but a judge can order one spouse to pay alimony to the other from their separate property – see Alimony).
Many couples have only marital property because neither spouse brought significant money or property to the marriage or, if they did, it was mixed in with all the other property they accumulated while married and can no longer be identified as separate. A judge will not divide property that is proven to be one spouse’s separate property.
Identifying property as marital or separate is usually quite simple, but it can get complicated. For example, if you or your spouse owned a home before your marriage or used money earned before your marriage for a down payment, your marital home could be a mix of separate and marital property. Separate property commingled with marital property is generally considered to be separate property as long as its source and identity can be traced, and it can easily be divided. If you and your spouse cannot agree on what is marital or separate property you should consult a lawyer or Certified Divorce Financial Analyst.
Valuation is easy for assets like cars, bank accounts, IRAs, and life insurance policies because these assets have readily identifiable balances or active markets. For property without an easily established value or active marketplace, you can hire an expert to help assign a value. If you are trying to determine what your house is worth you can consult with a real estate agent for recent comparable sales in the area to determine market value or you can hire a home appraiser.
In some marriages, the most valuable asset is a family or closely held business. The true value of a closely held business can be obscured by family expenses being taken as business deductions. Often the value of a small business may be based almost exclusively on one spouse’s personal efforts and different experts can use different valuation methods which can make comparing one valuation to another difficult. And experts hired by one spouse will likely come up with a value favorable to that spouse. At a minimum, any valuation of a closely held business should include an audit of business records so both parties are starting from the same place.
While it is difficult to assign a value to assets with fluctuating value or that have a limited market, you should try to save time and money by reaching an agreement together. If you cannot agree on a value, you can ask a judge or jury to decide that for you, but ultimately you or your spouse will have to persuade a judge of the reasonableness of that value.
Georgia law requires that marital property and marital debts be equitably divided between the spouses. There is no formula for dividing marital property. Unless a judge hears evidence that makes him or her believe that a 50/50 division would be unfair, a 50/50 split is very close to where most divorcing couples end up. There are circumstances under which one party might receive more or less than 50%, but rarely do those instances move beyond 60/40 without strong evidence of unfairness to one party. Because the standard the judge is using to divide the marital property is fairness, in the absence of evidence that one party deserves more than half of the marital property, it is reasonable that fairness dictates a roughly equal division.
Marital debt must also be divided. Under Georgia law, marital debt is all the debt you or your spouse acquire, together or separately, after you are married. For example, if you take out a credit card in your own name any unpaid charge on that card is a marital debt (even if your spouse cannot use that card). If your spouse takes out a second mortgage on the marital home (even if you don’t know about it), that loan balance is a marital debt.
Like marital property, the judge will divide marital debt according to principles of equity and fairness. A judge can consider all circumstances surrounding the creation of the debt, including the use of the proceeds and when the debt was incurred.
The form relied upon by judges in Georgia to understand your finances and determine how to divide your marital property and debt is the Domestic Relations Financial Affidavit (DRFA). Each spouse must complete his or her own DRFA, swear under oath that it is correct, and keep it updated throughout the divorce proceeding.
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.
We’ve got you covered. Visit A Modern Divorce by Taylor & Weber LLC for options to help you mediate issues, draft a parenting plan or settlement agreement, file your documents with the court, or simply provide legal advice.
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