A key component of the divorce process is figuring out which spouse keeps what. There’s a common misconception that if parties are getting divorced, then they are each entitled to half of the marital estate. In reality, this is not the case. Instead, Georgia is an equitable distribution state. This means that the Court divides the marital estate based on what is considered to be just, fair, and equitable instead of taking a knife and slicing the marital estate equally in half. This is not to say that the marital estate may not be divided in half. In certain instances, half may be what is fair.
Because the property division is based on what the Court finds to be equitable, the Court can look at a number of factors in deciding the division of the marital estate. To name a few, the Court could consider the following:
- Conduct of the parties;
- Contributions to the marriage – both financial and at home;
- Intent of the parties regarding a specific asset; and
- Length of the marriage
Therefore, for example, if one party had an affair during the marriage which led to the divorce, then this could impact the Court’s decision when dividing the marital estate. In addition, the Court is not going to punish one party for putting their time and energy into upkeeping the home and raising the children while the other contributed more to the marriage financially. Both are looked at as contributions that will be considered by the Court.
The Court cannot just divide any and all property owned by the parties. The Court may only divide property that is considered marital. Marital property is “that which is acquired as a direct result of the labor and investments of the parties during the marriage.” Hipps v. Hipps, 278 Ga. 49 (2004). This can include but is not limited to retirement benefits, real property, employment earnings, investment accounts, vehicles, and businesses. The trier of fact in a divorce proceeding will need to review the evidence and decide which assets it considers to be marital and which it considers to be non-marital/separate. While the Court is not going to divide separate property and award it to the other spouse, it can consider the separate property when deciding how to divide the marital portion of the property.
On paper, dividing the marital estate may seem like a simple division. In reality, it can be a very complex process that requires not only an experienced attorney but various other experts such as financial experts and appraisers.
Examples of times an expert may need to be retained are: (1) to analyze retirement accounts. Financial experts perform analysis in order to evaluate which portions of the accounts are marital and which are separate property. A retirement account may have been created and contributed to prior to the marriage, but if contributions were made after the marriage, then portions of that account are now subject to equitable division. (2) to appraise real property and other assets in which a value must be determined in order to make an equitable division. This can also include performing business valuations to determine the value of a business.
In sum, the property division aspect of a divorce can be quite a complex process where the Court makes a determination based on principles of fairness instead of simple math.