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Divorce – Division of Property

Georgia law provides for equitable division of marital property in a divorce case. Marital property is generally that acquired during the marriage.

David Walker, Attorney at Law

The court will decide what is marital property and what is not, and order that each spouse received a fair share. An equitable division may not mean an absolutely equal division. The court may seek to make a balanced award of property value to each spouse. If the circumstances are such that it would be fair to give one spouse a larger share, the court can do that. The court can take many factors into account, including conduct, earning capacity, other assets, age, and health among other factors.

Property that is received by a spouse through inheritance or gift is not marital property. The spouse receiving the inheritance or gift can generally retain that property. That is called separate property or nonmarital property. When separate property is sold and the proceeds used to buy other property during the marriage, the spouse who is the source of funds may get a larger share of the equitable division, in proportion to the amount of separate property invested.

Some assets are partly marital and partly separate. If separate property is used to buy a marital asset, the appreciation of the property during the marriage can be a marital asset. So the court may have to compute how much of the current value of the property is based on the initial investment, and how much results from appreciation. It is important to keep records of the value of the property as of the date acquired, and date of the marriage for this purpose.

If a spouse owns a business that was started during the marriage, the value of that business may be marital property. If the business was started before the marriage but appreciated during the marriage, the amount of appreciation may be marital property. That would depend on whether the business value appreciated because of the efforts of either spouse. These efforts would include not only management of the business but possibly homemaking activities by the other spouse.