What Exactly is Marital Property?

Candace Duvernay Uncategorized

During a Georgia Divorce, perhaps one of the most confusing issues for married couples to navigate is that of marital property. Couples often don’t know where to begin when deciding how to divide their marital assets. Here is a guide to help you determine whether the property involved in your uncontested divorce should be considered marital or separate.

  1. When was the property purchased? The first thing spouses often say when they consult with our Firm to determine what the marital assets are is “the house is in my name only”. Or, we often hear, “She has no claim to that because I’m the only one paying for it.” We immediately follow up with the question, “When was the property purchased?”. If an asset was purchased after the couple was married and prior to the couple’s separation, a Georgia court will likely consider the property to be marital. This is true regardless of who’s name is on the title or deed.
  2. What money was used to purchase and/or upkeep the property? The Court does not only look at when the property was purchased, but they look at what money was used to purchase the property. Did one spouse use their inheritance to purchase the property? Did one spouse use a large part of their income to sustain the property? If a property starts out as individual property but one spouse improves the property or maintains it, he or she may be able to make a claim that at least some portion of the property is marital and should be divided equitably between the spouses.
  3. Is the property a marital gift? Often, someone will give their spouse a substantial gift and try to take it back once the parties decide to divorce. Georgia laws are clear that if the property is determined to be a gift, it is not marital property and cannot be considered a marital asset. This is true regardless of how valuable the asset is. However, one cannot just call an item a “gift” to get out of dividing it in the divorce. There must be proof that the item was indeed gifted to the recipient spouse and that the spouse used the gift as personal property.

Georgia divides property using the “equitable division” standard. This means that even once the Court determines what assets are marital, there has to be a determination of what is a fair division of the assets. The Court may require the parties to share everything 50/50, but the Court has freedom to divide the assets any way they determine is fair for both spouses. If you have marital property and want to determine what is a fair division of the marital assets, consult with a divorce attorney immediately.