Do You Automatically Receive Half of All Assets in a Divorce?
Divorce has a huge financial impact. With the average cost of divorce being around $13,000, you may be wondering just how big an impact divorce will have on your life.
Will you be able to lead the same type of lifestyle you were accustomed to before the divorce? Will you receive half of all of the assets? The short answer to that last question is probably not. Georgia is considered an “equitable distribution state” with regard to the division of marital property.
What does equitable distribution even mean? Equitable distribution essentially means that the courts or the parties fairly divide property in a divorce. This does not necessarily mean that each party will get half of the assets. Read on to learn more about how property is classified and find out what equitable distribution might mean in your case.
What Kind of Property is Divided?
Think about all of the things and property that you and your spouse have acquired during your marriage. You may own a home full of furniture, have several cars or both. Maybe both spouses worked during the marriage but only one spouse contributed to a retirement plan. Maybe one spouse stayed home to raise children while the other spouse was the primary breadwinner. The first thing the court (or the parties) look at when dividing property in a divorce is distinguishing between marital and separate property.
The Georgia Bar Association explains that marital property is made up of all assets acquired during the marriage, except for items received as a gift from a third party or an inheritance. The house you bought together on your first anniversary is likely marital property. The cars that you drive that were acquired during the marriage? Also marital property. Gifts between spouses are also considered marital property.
Distinguishable from marital property, separate property is made up of assets that each spouse owned prior to the marriage. Separate property can also be property received by inheritance or via a gift from a third party. So that necklace your spouse gave you for Mother’s Day is likely marital property, but the $5000 check from your spouse’s Aunt Margaret’s estate is likely to be classified as separate property. For the most part, spouses get to keep their separate property after a divorce.
Certain types of assets are difficult to classify and/or divide. These include retirement benefits and pension plans. In addition, there may be other future benefits that cannot be immediately liquidated. Courts in Georgia have the ability to issue something called a qualified domestic relations order. This order divides the assets into two accounts — one for each spouse.
It is common for divorcing spouses to divide their assets because of the costs and time involved with getting the court to divide the assets. Instead, the parties can negotiate the division of their assets into either marital or separate property. Once the property has been classified, the parties can enter into a written agreement.
What Happens When the Parties Can’t Decide?
If the parties getting divorced can’t divide the property based on its classification, or don’t agree on how to qualify a particular piece of property, the court will decide. The court tries to remain fair and impartial during the process. The court uses a number of factors to make a determination including:
- The separate assets of the parties.
- The financial status of each party.
- The income and earning potential of each party.
- The way that the parties utilized finances during the marriage.
- The future needs of each party.
- The debts of each party.
- The conduct of each party during the marriage.
Once the property is classified by the court as marital property, it will be divided by the court. While not considered part of marital property, the court can order one party to pay alimony to the other party in the event that one party made the majority of the money during the marriage.
What Can You Do if You Are Concerned About Property Division?
If you are contemplating divorce, you may have questions and concerns about how your marital and separate property will be divided. If you are apprehensive about equitable property division or how to get a highly skilled, caring attorney on your side, contact The Platt Family Law Firm in Roswell, GA at 404-255-3434 to schedule a consultation. If you and your spouse are seeking a divorce, it’s important to work with a skilled attorney to explore your options. Speak with us to get sound guidance during an emotional time.