Monday, October 22, 2012

Property Division in Divorce

Perhaps the most important and least understood aspect of divorce law in Georgia is how property is to be divided. Georgia is an equitable division state, which means that property is divided "equitably" or "fairly". Other states, such as California, are "community property" states, which means that in a divorce all property is divided equally, regardless of fault or factors concerning the nature of the assets. When you are divorcing in Georgia, the first issue is what is marital property. Generally, all property earned during the marriage is marital property to be divided. Property you owned before marriage or property you inherited is "separate property", which is as a matter of law awarded to the person who brought it into the marriage or who inherited the money. So, for example, if you owned a house prior to marriage and get divorced, you will get ownership of the house. However, if during the marriage the mortgage is paid off due to marital efforts, then the equity increase would be a marital asset to be divided. Often a property may be part marital, part separate. For example, if you had a 401k prior to marriage, then add to the 401k during the marriage, the part of the 401k contributed during the marriage would be divided, plus a share of any increase due to market forces. It is important to retain a lawyer to make sure that your property rights are protected, especially in regard to pensions and retirement accounts. A legal document known as a QDRO (Qualified Domestic Relations Order) will divide marital assets without tax consequences, separating the asset into accounts in each parties' name.

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