Protecting Your Interests During Property Division
If you and your spouse are getting divorced, one matter that will need to be addressed is property division. This is often one of the most contentious issues because so many major assets may be involved. Your goal is to protect what you’ve earned and make sure the courts treat you fairly during the divorce process. Turn to E.N. Banks-Ware Law Firm, LLC, for aggressive advocacy of your interests.
What Are Georgia’s Property Division Rules?
Georgia follows a system of property division known as equitable distribution. “Equitable” means fair, not necessarily equal. In determining how to divide property, the ultimate aim of the court is to consider both spouses’ needs along with the facts of the case. Only marital property is subject to equitable distribution; property that is determined to be the separate property of either spouse is excluded.
Marital vs. Separate Property
Marital property is that which was acquired by either spouse during the marriage, with very few exceptions. Title to the property does not matter; even if your name alone is on a car, for example, the court can decide it is marital property.
Considering this broad definition of “marital property,” many different assets could be subject to equitable distribution. These would include pensions, retirement accounts, and other retirement benefits. Even though these assets are titled in one person’s name, and even though they were directly earned through one spouse’s work, they belong to the marriage because they were acquired during the marriage.
There are exceptions to this rule, including property that only one spouse received by inheritance or gift. These are examples of separate property, even though they were acquired during the marriage.
Separate property also includes that which was brought into the marriage and was not transferred to the other spouse. For instance, if you owned a house before marriage, it would remain yours even after you get married as long as it is not conveyed to the other spouse.
What About Appreciation In Property Value?
Although property brought into a marriage is generally considered separate, there are some limitations to this rule with respect to appreciation. The first question is whether the appreciation was active or passive.
Active appreciation means that either or both spouses took an active role in increasing the value of the asset. Take as an example a business owned by the husband. After marriage, the husband invested time and energy into the business and thereby increased its value. This is called active appreciation.
Passive appreciation, on the other hand, is an increase in an asset’s value due to outside market forces. As an example, you own a piece of land but make no effort to increase its value. Over the course of a decade, the surrounding land is developed, and the value of your land increases as a result. This is passive appreciation.
Active appreciation is considered to be marital property, subject to equitable distribution, while passive appreciation is not.
Can Separate Property Become Marital Property?
As long as separate property remains totally separate, it won’t become marital property and won’t be subject to equitable distribution. But in marriages, this often does not happen. There are several ways that separate property can become, at least in part, marital:
- Commingling Property — Mixing your separate property with marital property is known as commingling. As an example, you take part of your inheritance (separate property), deposit it into a joint banking account (marital property), and use the money to make improvements to the marital home. Another example would be a separate vehicle brought into the marriage that your spouse begins working on or using marital funds to pay for.
- Retitling Property — If you own a house in your name only prior to the marriage, it will remain yours even after the marriage as long as the title stays with you. However, if you retitle the property into both your and your spouse’s names, it will become a marital asset.
- Using Property for Family — Before you get married, you own a car free and clear. After marriage, you begin using that car to take your kids to school or your family on vacation. By doing this, the vehicle has become marital property.
Property often contains marital and non-marital elements. Using the source of funds rule, a court will determine the ratio of marital to non-marital funds that were invested in the property. Source of funds determinations are complex and often require the input of experts.
Property Division Steps
There are several ways to divide property. One is to avoid court intervention by using a prenuptial agreement (before marriage) or post-nuptial agreement (after marriage) to decide who gets what in the event of divorce. If you don’t have one of these, you can still divide property once you are separated by using a separation agreement.
Where spouses cannot agree on how to divide property, they must ask the judge to make an equitable distribution of it. In short, the court will divide marital assets by considering a number of factors, including:
- The income and earning potential of each spouse
- The future needs of each spouse
- Each spouse’s debts
- Each spouse’s conduct during the marriage, including any wasting of assets
Once the court takes all relevant factors into consideration, it will divide property in a manner it deems to be fair, or equitable.
Dividing Complex Assets Requires Outside Expertise
If you own a business, have a retirement plan, or have other complex assets, you must have an experienced attorney on your side. In addition, you will likely need other professionals, such as business valuators, accountants, financial planners, and more.
In Georgia, a business you own that is not publicly traded is categorized as a marital asset, which means it is subject to equitable division during divorce. Additionally, even if you owned your business prior to the marriage and did not commingle it with your spouse’s assets, the appreciation may still be considered marital property. If you want to fight back and keep ownership of your business, you will need an attorney who is a tough, savvy negotiator and litigator.
Retirement accounts (the portion of them that existed during the marriage) are also classified as marital property and will likely be divided during property division. Depending on the type of accounts you have, there are a couple of ways to divide the accounts. You will need a qualified domestic relations order (QDRO) to split an employee benefit plan or to divide a pension if it must follow the Employee Retirement Income Security Act (ERISA) laws.
In some cases, the couple decides to allocate other marital property in exchange for one person keeping the entire retirement account. This exchange of assets is fairly common, but still requires an attorney with considerable experience in this area. You can count on attorney E.N. Banks-Ware to navigate this issue with you and protect your interests.
Let An Atlanta-Area Divorce Attorney Help You Today
Property divisions are complicated and can take into account many economic and non-economic factors. You need an experienced divorce attorney to help you navigate Georgia’s equitable distribution laws. Trust E.N. Banks-Ware Law Firm, LLC, for all of your family law needs. Call 770-679-2617 or contact us online to schedule a consultation.