Separate Property in Georgia Divorce
While the law in other states clearly delineates rules and guidelines for dividing marital assets, in the state of Georgia this generally falls to a judge’s sole discretion. As such, a judge is given a tremendous amount of leeway to exercise their own judgement in dividing up assets, taking the specific circumstances of the case into account. Everything from the duration of the marriage, the best interest of children and financial considerations both during and after the marriage will play a role in their decision.
Preparation is Vital in every Divorce Case
One of the most important concepts to understand in a divorce case is separate property.
In a divorce in Georgia, “separate property” means stuff that belongs to just one person and usually stays with that person. It includes things owned before the marriage, like houses, money, and personal stuff. Gifts and inheritances are also considered separate property. If a couple has a prenuptial agreement saying certain things are separate, those things usually stay separate.
Fortunately, it is possible to contest separate property. If the property in question was used for the benefit of the marriage or is commingled with shared marital assets, it will require a strong argument and solid evidence to ensure the property is protected from division.
In the state of Georgia, a process called equitable distribution will determine which assets belong to which spouse during a divorce. The goal of this process is to ensure that both spouses enjoy equal access to marital property following divorce, with that property consisting of assets acquired by either spouse while married.
This process is when separate property is established. During equitable distribution, each asset is presumed to be marital property by default. Either spouse looking to claim it as separate property, and thus prevent it from being shared in the divorce, must furnish evidence proving their sole claim to it. This evidence can take the form of documentation, records, financial statements, deeds and even witness testimony to prove that it was acquired prior to the marriage.
Even assets that were acquired before marriage can be considered marital property if they were intermixed with shared assets. One example would be if a spouse used funds from an inheritance or settlement to finance the launch of a new company.
Tracing Separate Property
Even commingled marital assets can be claimed by one spouse in divorce proceedings using what’s called “tracing.” This process demands exhaustive record-keeping and detailed examination of documents and records that trace the ownership of assets. Essentially, it aids to divide again what has already been divided once, separating marital assets into smaller portions that are excluded from division.
As it is a process defined by thorough examination and knowledge, it often requires the assistance of forensic accountants, appraisers and other financial experts to provide testimony and establish ownership.
When the Value of Separate Property Changes
Further complicating matters, the value of a given asset may rise or fall during the course of a marriage. This fluctuation will have no impact on whether or not an asset is considered marital property, but it could affect the amount subject to equitable distribution.
Especially in cases where an asset has increased in value during the marriage, it is important to establish a legally binding narrative that strengthens your claim to separate property. The same holds true for assets that may have sentimental value, that could secure your future financial security, or that could otherwise diminish your overall legal entitlement.
Separate Property in Cases Involving Infidelity
As mentioned earlier, Georgia law leaves the division of marital assets solely at the judge’s discretion. As such, there are no laws establishing separate rules or guidelines in cases of infidelity. However, a judge may decide to allocate a greater portion of marital assets to a spouse who was wronged, particularly if the adulterous spouse fails to demonstrate remorse or used marital assets to fund the affair.
The best way to ensure that individual property remains separate, is advised to hold larger assets such as real estate or expensive items in your name and maintain a dedicated bank account with personal funds. Before a divorce, this separation can be agreed upon by a pre-nuptial agreement, but even after the marriage has ended a post-nuptial agreement can help determine clear lines of possession and protect assets from being lost in the divorce.
Protecting Separate Property Through Mediation
As the courts are given enormous flexibility in determining which assets constitute separate property and which constitute marital assets, it’s vital to protect them before trial. This can be achieved by reaching an agreement through mediation prior to appearing before a judge.
At The Claiborne Firm, we’ve built an outstanding reputation for reaching agreements and settling the terms of a divorce through meditation. This process is the ideal way to resolve negotiations before trial, easing your own burden in terms of fees and court costs and ensuring that your fate isn’t determined by a judge.
It is in the best interests of everyone involved that an agreement be reached during meditation, as it allows both spouses to create their own outcomes rather than leave it up to a judge. However, if an agreement cannot be reached through mediation, we will argue your rights to separate property before a judge.
Schedule a Divorce Consultation for just $450
Protecting your property, both at the mediation table and in the courtroom, begins with an initial consultation. For just $450, this confidential meeting will allow you to establish a relationship with the attorney who will be defending you, while also giving you a chance to establish evidence and begin building a strategy.
During this consultation, you’ll be protected by attorney-client privilege, allowing you to share all the details of your divorce, your finances and your assets. And it’s vital your attorney has all the facts, as it will allow them to properly protect your legal rights to your assets and any children.
Your retainer fee will also be established during this initial consultation, giving you a clear understanding of what your legal fees will be.
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