Is Georgia a Community Property State?

People considering divorce often worry about how dissolving the marriage will impact them financially. The specifics depend on how the state they live in treats the property the couple acquired since marriage.

Is Georgia a community property state? It is not. Georgia uses the equitable distribution model when deciding how much each spouse gets in a divorce.

The Difference Between Community Property and Equitable Distribution

Under both the community property and equitable distribution systems, and according to the Official Code of Georgia § 19-3-9, anything either spouse owned when they got married is that spouse’s separate property. Anything either spouse acquired since the marriage or anything the couple acquired together is marital property subject to division.

Under both systems, the couple can identify property that would typically be marital property as separate in a prenuptial or postnuptial agreement. In addition, anything either spouse inherits as an individual is their separate property if they treat it as separate during the marriage. Gifts to one spouse are also considered separate property.

The community property system assumes an equal split of all marital property is fair. Georgia’s equitable distribution process requires a judge to consider the couple’s circumstances and fairly divide their assets. That could mean a 50/50 split, but sometimes, one spouse leaves the marriage with substantially more of the marital property than the other.

Disputes Over How Property Should Be Classified

Under both the community property and equitable distribution systems, property owned before marriage or inherited or received as a gift during the marriage is separate property. However, the way a couple treats their separate property can affect whether a family court judge will view it as separate.

Say one spouse owns separate property and the other spouse contributes to an increase in the value of the property during the marriage. The contribution might be direct, like doing physical labor to maintain it, or they might make an indirect contribution by allowing the use of marital funds to improve it. A family court judge might grant the non-owner spouse an interest in the property to reflect their contribution.  

Sometimes a spouse uses their separate property for the benefit of the family. When an owner of separate property commingles it with marital property, it may lose its identity as separate property. These analyses are fact-specific, but a skilled Georgia divorce attorney could explain whether the ownership of any separate property might be ambiguous in your case.

Is Georgia a 50/50 Divorce State?

In a community property state, each spouse has equal interests in the marital property and typically receives half of it in a divorce. Because Georgia uses the equitable distribution model, a family court judge may decide not to divide the marital property evenly. Sometimes spouses leave the marriage with roughly half of the marital assets, but in other cases, one spouse may receive most of the property.

The value of the spouse’s separate property and their ability to support themselves can be a factor in equitable distribution. A spouse with enough personal assets and earning capacity to be financially stable after divorce might receive less in a property settlement. The poorer spouse might get more marital property because they need it to maintain a reasonable standard of living.

Fault for the divorce may also play a role in property division, even when a couple chooses to cite the irretrievable breakdown of their marriage as the ground for divorce. If one spouse has a gambling problem and wasted marital assets, the innocent spouse might receive a larger property settlement. If your spouse used marital assets for purposes that undermined the marriage, discuss the situation candidly with your Georgia divorce lawyer.

Factors Judges Consider When Making an Equitable Distribution

Georgia’s approach to property division is more flexible than a community property approach. That flexibility means predicting how much you will take out of the marriage may be more challenging.

When dividing property, the judge considers how long you were married and whether one of you was the primary breadwinner or both of you contributed substantially to the household income. If one spouse supported the other through their education and training, that contribution could be a factor in the property division award. The law recognizes that homemaking and child-rearing are valuable contributions to a marriage.

The courts also divide marital debt in a divorce. The judge will consider who incurred the debt, its purpose, and who benefitted from it. It is critical to work with a skilled attorney to ensure the property and debt division is fair.

Negotiated Settlements Are Preferable in Most Cases

Although judges try to be fair when dividing marital property and debt, you and your spouse are best positioned to understand what is fair in your circumstances. When you can work together to divide your property fairly, there is a better chance the agreement will be equitable.

Some couples use a collaborative divorce process to divide their property and debt. The couple and their attorneys must agree not to litigate the divorce; then, they hire experts to help them value their marital property and reach a fair settlement. Couples who cannot commit to avoiding litigation could try mediation to resolve their property division issues.

Collaborative divorce or mediation may not be successful if you and your spouse cannot communicate productively. In such cases, your attorneys could negotiate directly with you and your spouse.

What If You Have to Litigate the Property Division?

Sometimes, couples have fundamentally different views about what is fair. If they cannot negotiate a settlement, a family court judge will decide what is equitable. You will need to compile substantial evidence in support of your position. 

You must provide a comprehensive inventory of the separate and marital property, with valuations, as well as information about your income and work history. You almost furnish a thorough description of your financial and non-economic contributions to the marriage. If you allege your spouse’s actions wasted marital assets, you must provide evidence.

Work with an experienced Georgia divorce litigation attorney if you must resolve your property settlement in court. There is an art to compiling and presenting evidence to persuade a family court judge, and quality legal representation can make a big difference.

Get Help From an Experienced Attorney When Dividing Property in Divorce

Since Georgia is not a community property state, a couple’s marital property will not necessarily be divided equally in a divorce. Equitable distribution requires a fair division of property and debt, not an equal one.

Work with a skilled Georgia attorney when you decide to divorce. Skilled representation can make a significant difference in your property settlement. Reach out to our team today to schedule a free consultation.