Divorce rates in Georgia are on the rise. In 2017 alone there were over 10,000 divorces. This is a significant increase from just over 8,000 in 2013.
This isn’t necessarily a bad thing. Being tied into a bad marriage can have devastating consequences for your emotional, mental and physical health. For any families with children, these consequences can be even more harmful.
But that doesn’t mean that getting a divorce is easy.
As well as extensive emotional fallout, getting a divorce can also be practically difficult. You and your ex-partner have to divide up your assets fairly and you won’t always agree on what is fair for both of you.
An unfair settlement could have a huge impact on your life. You both have a claim to any shared property. To protect yourself from missing out during a divorce you need to get familiar with the divorce laws in Georgia.
That’s where we can help. Read on to find out everything you need to know about filing for divorce in Georgia and what happens to your property when you do!
Georgia Divorce Requirements
Before you file for divorce in Georgia you need to meet certain requirements. You can also speed up the process by having the appropriate paperwork in place.
The basic requirement for filing for divorce is based on your residency. You can only file for divorce in Georgia if you or your spouse have lived in the state for a minimum of six months prior to your filing.
In addition to this, you must choose your grounds for divorce. These are reasons that the legal system recognizes as being acceptable for dissolving a marriage.
Grounds for divorce can fall into two categories: fault divorce and no-fault divorce. As you might expect, in fault divorce one of the parties carries more responsibility than the other for the marriage breaking down. In this case, grounds for divorce might include:
- Mental, physical or sexual abuse
- Unreasonable behavior as a result of a mental illness
- Criminal convictions
In a no-fault divorce, the separation is something you and your ex-partner agree on and take shared responsibility for. Neither party is to blame. In this case, two or more years of consensual separation can be grounds for divorce.
No-fault divorces also might sight irreconcilable differences as grounds for divorce. In cases involving families, the state can grant ‘State Acceptance’ to avoid messy and upsetting fault divorces.
Whatever the reason for your divorce you should take time to think carefully about what grounds you would like to use. This could affect how a judge divides your property during the proceedings. And this property might include more than you realize.
How Does GA Divorce Law Define Property?
In short: anything that you own that has exchangeable value is property. If you can sell it off or trade it in for money, it’s property!
This includes physical assets, such as your home, your car and your furniture. Jewelry and family heirlooms also count. It also includes anything you hold in your bank account and any interest that you might accrue on this money.
Furthermore, divorce in the state of Georgia can look at any assets you have invested in. This means if you own a business or have retirement plans in place a judge could include these.
But property isn’t just about what you have of worth, it’s also about what you owe. During a divorce, the debt can be shared between two partners. So it’s worth taking your financial situation into consideration when filing for divorce.
Divorce in Ga: Marital Property vs. Separate Property
Your claim to property during a divorce depends on a few things. Whether the property is marital or separate is a big consideration.
Marital property refers to anything that you and your ex-partner acquired during your marriage. For example, a home that you bought after you married is marital property.
In contrast, separate property is property that one of you owned prior to your marriage. In some cases, you can acquire separate property during a marriage but this must come in the form of a gift from a third party. If you were to sell off this separate property, then the money you got from it would remain as separate property.
It is possible to convert separate property into marital property during a marriage. This involves giving both partners joint ownership of the property. In doing so, one spouse makes a gift of the property into their marriage and it becomes marital property.
In some circumstances, it might be possible to try to claim this back as separate property during a divorce but this can be extremely difficult. It involves tracing extensive financial and legal records. And even then your partner’s lawyer might claim that the property is still marital property and therefore fair game.
During a divorce, any marital property can be divided up between the two partners. In general, anything included in a prenuptial agreement and separate property remain off the table. The one exception to this is the ‘Source of Funds’ rule.
Georgia Divorce Law and the ‘Source of Funds’ Rule
Georgia’s ‘Source of Funds’ rule comes into play when both partners in a marriage have contributed to the value of an item of separate property.
For example, one spouse might have bought a house prior to the marriage. This then became the family home for the couple and their children. During this time the other spouse helped to upkeep the house.
Upkeep might have been financial, for example paying for repairs or extensions to the property. Or it might have been carrying out daily care on the property which helped to increase its value.
If the owning spouse chooses to sell their property and makes a profit off it, then the contributing partner may be entitled to a share of this profit. For example, if they bought it for $300,000 and sell it for $500,000 then the contributing partner could make a claim to the additional $200,000.
Making a claim like this can be extremely complicated though. You will need to provide evidence of your contribution to the property. This will determine how much of the profit you can claim.
This also involves determining the exact value that you have added to the property. To do this fairly and without causing upset you may have to bring in an independent expert.
But if you feel that you have contributed to the value of your partner’s property, then it’s worth discussing the ‘Source of Funds’ rule with your lawyer. It could significantly increase your share of property following the divorce.
Agreeing on Property Value
Once you and your partner have agreed on the ownership of your property, you’re almost ready to divide it up. But before you can do this you must also agree on the value of this property.
This can be a long-winded process as it involves examining all your property and its market value. To simplify it, you can hire a professional appraiser.
For some assets, you might need more specialized help. For example, an actuary will be able to help you evaluate the worth of any retirement accounts.
Hiring in professional help might feel like an unnecessary cost. But it will help to speed up the process and save you money while your lawyers go back and forth discussing your property’s value.
Dividing Property During a Divorce
So now we come to dividing your property.
Georgia divorce law works on the basis of Equitable Sharing. This means that any of your marital property can be divided up during your divorce, while separate property is excluded.
To begin the dividing process, you can categorize your property. For example, financial assets go in one category while physical valuables, such as jewelry or family heirlooms, go in another.
When it comes to your house or houses, you have a few options.
- You can agree to sell your house during the divorce and divide the financial assets that you get from the sale.
- You can agree to keep the house and one spouse receives it as part of their financial settlement.
- You agree to keep the house as a shared asset to use as a family home.
Each of these options has its pros and cons. For example, one of the benefits of selling your house during a divorce is that you gain financial independence from your ex-partner.
In comparison, keeping your house as a shared asset means that your financial future remains tied up with your ex’s. But holding onto the property might mean you can share in any value that it accrues over time.
In an ideal world, you and your partner will be able to agree upon the division of property between the two of you. Your lawyers will be able to help you negotiate this.
But divorce isn’t always this straight forward. Your partner may not want to sell your marital home or you may be unable to agree on the division or specific value of a property. In this case, you might need to get help from a judge.
Court Supervised Division of Property
Sometimes court involvement is necessary when you are dividing up property. This might be because you can’t agree on the value of your property, or because you can’t agree who gets which assets.
Either way, when a court gets involved these decisions will no longer be in your hands. A judge will step in and divide up the property accordingly.
In order to make a fair judgment, they will take into account the value of your property and the circumstances of your divorce. Things that could influence a judge’s decision include:
- How long you were married for
- How old you are
- The health of both you and your ex-partner
- The service each of you has given to parental responsibilities, household incomes, and homemaking
- The standard of living that you maintained throughout the marriage
- How you or your partner may have contributed to the other’s earning power during the marriage. For example, a stay-at-home spouse allows for their partner’s career progression and any increase in salary.
- Any custody agreements for your children
- The needs of each spouse, at present and in the future
- These needs vs. each spouse’s ability to support themselves
A judge may also take into account your behavior and cooperation during the proceedings. So it’s important to work with the court on every occasion.
Getting a judge’s help when dividing up your property should be a last resort. You and your partner must agree to whatever the judge deems an appropriate division. So you lose a lot of control when you turn to a court for help.
In addition to this, it might add significantly to your divorce bill. As well as paying for a lawyer you might have to foot the bill for the court costs. So you should try to avoid this if you can.
The Bottom Line
Going through a divorce is never an easy experience, but divorce laws in Georgia work to make the process as simple and painless as possible.
Make sure you have a great lawyer on your side and get your assets in order before you file. This will make the whole process as quick as possible.
If you’re going through a divorce and are thinking of selling your house, check out our guide on how to avoid cash-for-houses scams. Or for more tips on making great legal choices for your property, check out our blog.