Atlanta, GA Division of Assets Lawyer
Cohabitation during a marriage usually involves sharing money, belongings, and property. During an unfortunate situation such as divorce, those commingled items may need to be divided.
If you are in the process of dissolving your marital union, it is wise to consult a dedicated family law attorney. An experienced Atlanta, GA division of assets lawyer would be adept at negotiating the separation of property.
What Property Does the Court Divide?
Before a judge can render a final decision on how to divide assets in a divorce, there is a decision to be made on what assets should be divided at all. Not every piece of property owned by one or both spouses will necessarily be subject to division. An Atlanta, Georgia attorney could help explain the division of assets process by first defining separate and marital property. Generally, marital property will include any asset acquired during the marriage. Common examples of marital assets may include the following:
- Real estate;
- Retirement and investment accounts;
- Business ownership interests;
- Vehicles;
- Art;
- Collectibles;
- Other personal property.
While Georgia courts and juries have directions to divide all marital assets equitably in a divorce, this does not necessarily mean the split will be even. Several factors will be relevant to the family court’s decision as to who will receive what items. Key factors can include the source of the capital to acquire the assets, their value and appreciation at the time of divorce, and non-financial considerations, such as the sentimental value to each spouse.
The difference between separate and marital property is important. During a divorce, it is the responsibility of the court to divide all marital property between the spouses. The same is not true for separate property.
For the most part, separate property is any asset owned independently by one spouse. Usually, they will bring these assets into the marriage due to owning them prior to the wedding. Marital property is usually anything of value that is accumulated during the course of the marriage. It may be difficult to distinguish marital property from separate property in cases where the spouses have fully commingled their assets by joining bank accounts or retitling the assets.
There are situations where it is possible for a spouse to accumulate separate property while married. Some common examples include family inheritance or the proceeds of a personal injury settlement. It is possible for there to be disputes over this distinction during the course of divorce litigation.
How Are Assets Divided?
Although assets could be divided equally between a couple, the courts are not required to split them down the middle. The judiciary must exercise equitable judgment during the apportionment of property and monies. Furthermore, it may be important to make a distinction between property purchased jointly by both spouses versus property owned by one party prior to their marriage to the other—marital and non-marital property, respectively. The Georgia family court may order the spouses to transfer or liquidate certain assets to effectuate an equitable division. For example, the court may order the parties to sell tangible assets, like real estate and other valuables, if disposition to one party would be inequitable.
Divorcing spouses may rely on a jury to assist with the disposition of their assets, as Official Code of Georgia Annotated § 19-5-13 states that a jury’s decision may become binding as of the issuance of the total divorce decree. A diligent Atlanta division of assets attorney can provide further information on the distribution of funds.
The Risks of Asset Concealment
One of the crucial aspects of this process is complete disclosure. After all, it is impossible for a judge to divide marital property in an equitable way if the court is not aware of the full scope of the couple’s assets.
There are times when the failure to disclose a marital asset is simply a misunderstanding. There are also situations where a spouse might actively seek to conceal an asset to prevent it from being divided during the course of the divorce process. A spouse can protect themselves from this type of asset concealment by having a Georgia attorney carefully review the marital accounts. Strange expenditures or unusual asset transfers could be signs of concealment.
Asset concealment can also risk the court revisiting its original divorce order and its division of assets. If you become aware of an ex-spouse’s concealment of marital assets during the divorce, you may have a right to seek an equitable share. Our Atlanta division of assets attorneys can file a petition in these cases to reopen the divorce proceedings and pursue a modification of the court’s divorce order.
Impact of Prenups on the Division of Assets
Most divorce cases follow a similar pattern. Both spouses will disclose their assets and make the case for an equitable division. Then, the courts will ultimately decide what outcome is appropriate. This process could play out differently if there is a prenuptial agreement in place.
A prenuptial agreement is a form of legally binding contract. These agreements are executed prior to marriage and they can have a tremendous impact on the distribution of property in Atlanta, GA.
One of the things these agreements can do is determine the outcome of property division issues in the event the couple later divorces. When the spouses reach an agreement, they are effectively waving the right to have the court determine how the assets should be divided. These agreements could determine which party retains which piece of property and they also play an important part in categorizing these assets. Prenuptial agreements are common in relationships where one spouse has a disproportionate amount of separate property or is likely to have significant wealth from family inheritance.
A properly executed prenuptial agreement is difficult to contest during a divorce. However, it is not uncommon for parties to improperly execute these documents. Our legal team can help spouses review the terms of their prenuptial agreement and determine any basis for disputing it. Common issues that can create an opportunity to dispute the proposed division of assets under a prenuptial agreement may include the following:
- A spouse did not receive independent legal counsel before signing the agreement;
- A spouse did not fully disclose their assets before signing the agreement;
- There was insufficient time between the wedding and the presentation of the prenuptial agreement for a spouse to fairly consider its terms;
- The terms of the prenuptial agreement were not followed during the marriage.
If the spouses commingled separate property or failed to meet other obligations, a court may be less willing to give effect to its terms regarding the division of assets upon divorce.
How Do the Courts Distribute Debts in a Divorce?
Family courts typically prohibit spouses in divorce proceedings from transferring their property to a third party or entity. However, O.C.G.A. § 19-5-7 allows people to use their assets to pay pre-existing debts in certain circumstances. This is not always permissible, so it is advisable to speak with a division of assets lawyer in Georgia before paying major bills.
As for marital assets, the courts may equitably divide community debts and consider which party benefited from the expense that created the bill. For example, responsibility for student loans might be assigned to the spouse who received the education. In comparison, a more complicated division may be necessary for credit card debts, auto loans, and other liabilities where the spouses more equally share in the benefits.
Appropriation of Assets for Spousal Maintenance
A judge could order a spouse to pay monetary maintenance while a divorce is pending. Spousal maintenance, or alimony, may also be ordered upon the granting of a total divorce.
According to O.C.G.A. § 19-6-5, a jury may consider several factors when ruling on which spouse should continue to pay for the livelihood of the other. For instance, they could evaluate both partners’ levels of education, financial resources, and occupations. Additionally, a temporary order may be applicable while an ex-spouse completes higher education which could help them build assets in the future.
Accumulation of Assets After the Divorce Decree
In general, property that an estranged spouse acquires after a divorce is their separate property. Under O.C.G.A. § 19-5-15, a total divorce decree annuls a marriage as of the date of the order of dissolution.
Situations may arise, however, where the acquisition of assets affects a child support or alimony order. Consider any major changes in either spouse’s financial picture that may negate or require a modification of current alimony or child support under the divorce order. Relevant issues that may affect an alimony order could include a change in annual income, a financial windfall, or remarriage. A court may need to revise the terms of a child support arrangement if a child’s needs significantly change due to health or if a spouse has additional children from another relationship to consider
If applicable, a seasoned attorney who has experience with division of asset cases can inform claimants how their plans or goals could affect other marital agreements or parenting plans.
Call an Atlanta, GA Division of Assets Attorney Today
It can be tricky to untangle the property that a couple accumulates during the years of their marriage. In light of this, it may be substantially beneficial to have qualified legal counsel help you with the distribution of funds and debts from your marital property. Contact an Atlanta, GA division of assets lawyer today to schedule a consultation about the apportionment of your money and property during your divorce.
