When a couple gets divorced in Alpharetta, all of their marital property must be equitably distributed between them. However, what is equitable in one case may not be in another, and it may not mean a 50/50 split in every case. With these stipulations and levels of uncertainty, it is in a divorcing couple’s best interest to come to an agreement about the division of their assets prior to going to trial.

Drafting an agreement which outlines your property rights or defending your interest in marital assets during trial can be made easier with the assistance of an attorney from our firm. To learn more about the different types of property in Alpharetta that may be subject to division upon divorce, reach out to our team.

As Defined by State law, What Constitutes Real Property?

There are two basic types of property defined in state law: real property and personal property. According to Official Code of Georgia Annotated §44-1-2, real property (or realty) includes all lands and the buildings on the land; all things permanently attached to the land or to the buildings on the land; and any interest existing in, issuing out of, or dependent upon land or the buildings on it. It also includes the indefinite extension of the owner’s property rights downward (below the ground) and upward (into the air).

Characterizing Personal Property

Personalty or personal property is defined by O.C.G.A. §44-1-3 as all property which is movable in nature, has inherent value or is representative of value, and is not otherwise defined as realty. It includes anything detached from the realty, for instance a dishwasher that is removed from the kitchen of a house (O.C.G.A. §44-1-6).

The term property includes the right of ownership of realty or personalty (O.C.G.A. §44-1-1). While personal property is movable and can be apportioned more easily than land, according to O.C.G.A. §44-12-1, this type of property in Alpharetta may also be partitioned in the same manner and under the same regulations as are prescribed by law for obtaining a partition of lands and tenements, if need be.

What Counts as Marital Property?

In Alpharetta, the courts – not the legislature – control the distribution of property which necessarily occurs upon divorce. There are two categories of property which local courts recognize in a marriage which is ending: marital property and separate property.

Alpharetta courts have defined marital property as any assets acquired during the marriage. It is the possession of the “marital unit,” not of either spouse individually.

Marital property can include debts acquired by either party and usually includes gifts from one spouse to the other. It can also include the appreciation (or depreciation) in value of separate property, where that appreciation was not solely the result of market forces.

Title to marital property may be in either spouse’s name, or both, without affecting the essential categorization of the property as marital. When property is divided at divorce, only marital assets are distributed equitably between the two parties – that is, divided between them not equally but in proportion their needs and existing (separate) assets.

Defining Separate Property

O.G.C.A. §19-3-9 states that all assets owned prior to marriage are to remain under sole ownership during and thereafter. The courts define separate property as any asset acquired either before or during the marriage by gift from a non-spouse or via inheritance or bequest.

This includes appreciation of a separate asset that is purely the result of market forces. Under the “source of funds” rule, the courts have classified property as separate which was acquired after the marriage which was paid for exclusively by separate assets, and possessions earlier awarded solely to one spouse in the event the couple remarries. It is a matter of law that separate property is not subject to equitable distribution.

Hybrid Property

There are assets in Alpharetta which are classified as part marital, part separate, or hybrid property. This property is both separate and marital property in proportion to the contributions (monetary or otherwise) separately and jointly used to pay for it.

When the fact-finder identifies property that has been paid for and/or contributed to by both separate and marital assets, they rely on the “source of funds” rule. At trial, the fact-finder must identify what proportion of the funds that paid for the car, for example, originated from either spouse separately, and what proportion of the payments originated with marital funds controlled or owned by both parties in the marriage.

This discovered proportion is then applied to the value of the family car to identify how much is owned by the individual (separate property) and how much by the marital unit (marital property). The marital property portion is then subject to equitable division upon divorce at the discretion of the fact-finder (judge or jury).

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Atlanta Divorce Law Group

Sara Khaki
Alpharetta Office

Atlanta Divorce Law Group
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Alpharetta GA 30005

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