Property Division in Georgia

"Georgia is an 'equitable distribution' state for purposes of splitting up marital assets." These words flow out of my mouth several times a week when speaking with new divorce clients. Invariably I get a somewhat quizzical look from the person sitting on the other side of my desk. Basically, I go on to explain, a judge or jury is empowered to divide your assets and debts in a manner that seems fair and reasonable, under the circumstances. Of course, this is not an exact science and a tremendous number of factors can be, and often are, drawn into a final determination. Frankly, to call this issue “gray” is a gross understatement. However, it is often in this “gray” area that attorneys earn their fees.

The first step in establishing an “equitable distribution” of the marital assets is to determine what are martial assets. I often have clients admit, rather sheepishly, that, for one reason or another, their house, car, etc. is titled in the other spouse’s name. They often assume that this takes the asset in question out of the marital asset equation. Now, do not get me stated on what assuming means. This is a family blog after all. (pun very much intended). Generally speaking, any asset that was taken ownership of during the marriage, and was not a specific gift or inheritance of one party, will be considered a joint marital asset. Similarly, if one of the parties had an asset prior to the marriage, it is his/hers, unless the asset grew in value during the marriage, at least in part, due to the efforts of the other spouse.

The bottom line is that establishing what asset is marital is a crucial step in the divorce process. To assist lawyers and their clients in making this determination, the State of Georgia requires that both parties fill out a Domestic Relations Financial Affidavit. This affidavit will be a fairly concise listing of all of the parties’ assets, liabilities, and monthly expenses. Honestly, I have recommended filling out such an affidavit to friends and clients who were not going through a divorce, just so they could get a better handle on their financial status. The portion on monthly expenses is often the most eye opening.

This early analysis of the financial condition of the marriage can often be a good first step toward finding certain common ground for the parties to move their divorce forward, or it can be the opening salvo in a bitter dispute that involves what would otherwise be deemed fairly unimportant assets.

The purpose of the Financial Affidavit is to achieve as close to full financial disclosure as possible in order to move the parties toward a settlement. (Good faith mistakes are made and assets are sometimes forgotten) In part, a lawyer’s responsibility to his client is to filter the facts and circumstances of the particular case and to advise the client as to what he/she feels a judge or jury might decide is “equitable”. ) As many people are aware, the vast majority of cases settle prior to trial. If the parties can compromise on the nature of the martial assets then that is normally the “fairest” agreement they are likely to come by.

Needless to say (but I will anyway), every matter is different and needs to be evaluated on its' own merits. A host of other factors can be incorporated in an evaluation of your particular divorce situation. Give my office a call and we will be happy to sit down with you for a more formal analysis of your situation.