Equitable Distribution

Georgia is an equitable distribution state, meaning the courts recognize that both spouses have an equitable interest in all marital property acquired during the course of the marriage. Lynn Hamilton Johnson has an in-depth knowledge of Georgia property distribution laws and is well qualified to protect your interest.

It is important to contact our office early in the process because equitable distribution does not always result in an equal division of property between spouses but rather what the Superior Court considers fair.

The general rule is that all property acquired by either spouse during the course of the marriage, regardless of title, is marital property and subject to equitable division. Separate property includes any asset acquired before the marriage, or acquired by either spouse during the marriage via third-party inheritance or gift (gifts that spouses make to each other are marital property). Spouses get to keep their separate property after divorce.

Our first step in this complicated and often contentious process is helping you determine what is marital and what is separate property and work toward a mutually acceptable division. Judges will generally accept a fair and reasonable property division agreed to by both parties in the divorce, but if the parties cannot agree, the Superior Court divides the marital estate in the final decree.

Divorce courts are governed by notions of fairness (courts of equity), so they have complete discretion when deciding how to award marital property. Unlike courts in community property states, Georgia courts are not bound by rules or formulas; judges distribute property in any proportion they believe is fair under the particular circumstances of each case.

Although an amicable and fair property settlement is the preferred way to resolve a divorce, that is not always the case. If they can't resolve all of their issues, they will have to ask the court to make decisions for them. In Georgia, either party can demand a jury trial to decide all financial issues of a divorce, including the equitable division of property; but going to court can be quite expensive and can take months or even years to resolve. .

Georgia courts typically consider the following factors when deciding what is a fair and equitable division of marital property:

• the standard of living during marriage;
• the earning capacities of both parties;
• the education and vocational skills of both parties;
• the current income of both parties;
• the age and health of the parties;
• the assets, debts, and liabilities of the parties;
• the needs of each of the parties;
• the provisions for the custody of the minor children;
• each party's contribution to the acquisition of existing marital assets;
• each party's enhancement of the value of existing marital assets; and
• whether either party has dissipated or diminished the value of the martial assets by wrongful conduct.

What About Retirement Benefits?

If you and your spouse need to divide interests in a retirement benefit such as a 401(k) plan, pension plan, or other future benefit that cannot be liquidated immediately, the court issues a Qualified Domestic Relations Order (QDRO), which will effectively divide the asset into two separate accounts, one for the participant spouse, and another account for the non-participant spouse.

QDROs are complicated and if prepared incorrectly, important benefits and rights could be lost. If you need a QDRO in your divorce case, you should contact our office for help.