Equitable does not automatically mean equal

Georgia law provides that assets are to be divided equitable (or fairly), but not necessarily 50/50. Dan Palumbo will take the time to learn about you and your marriage to help you get all of the assets and property allowable by law. In Equitable means fair; and, according to Georgia law, fair does not always mean equal. Goldstein v. Goldstein, 262 Ga. 136 (1992). Fuller v. Fuller, 621 S.E.2d 419 (Ga. 2005). Generally, equitable distribution does result in the division of the estate 50/50 unless there is a reason to give one spouse a greater portion of the marital property than the other spouse. If you are getting divorced in Dekalb County, Georgia; Gwinnett County, Georgia; Cobb County, Georgia; Fulton County; Georgia or within the State of Georgia, Dan Palumbo will make sure you are not cheated out of what is rightfully yours.

How to decide what is equable

In many cases involving a dispute about equitable division of property the two largest factors considered by Courts are what was the cause of the couple’s separation, as well what contribution each party made to the marriage. In addition, the length of the marriage can play a role in what is fair.

Adultery, desertion, cruel treatment, or habitual intoxication can be some of the factors that come into play when dividing marital property. A Court can consider behavior, including adultery, as one factor in its decision-making process where equitable division of property is in issue. Bloomfield v. Bloomfield, 282 Ga. 108, 646 S.E.2d 207, 2007 Ga. LEXIS 421, 2007 Fulton County D. Rep. 1703. The conduct of the parties, both during the marriage and with reference to the cause of the divorce, is relevant and admissible. Peters v. Peters, 248 Ga. 490, 491-492 (2) (283 SE2d 454) (1981). In Fulton County Georgia, DeKalb County Georgia, Cobb County Superior Court or Gwinnett County Superior Court, or anywhere in the State of Georgia a Court is not forced to award a Party any of the marital property. Benson v. Ward, 343 Ga. App. 551, 807 S.E.2d 471, 2017 Ga. App. LEXIS 530, 2017 WL 4875539. While this is a very drastic result you must know that an “equitable division of marital property does not necessarily mean an equal division. The purpose behind the doctrine of equitable division of marital property is to assure that property accumulated during the marriage be fairly distributed between the parties. Each spouse is entitled to an allocation of the marital property based upon his or her respective equitable interest therein. Thus, an award is not erroneous simply because one party receives a seemingly greater share of the marital property. Wright v. Wright, 277 Ga. 133, 134 (2) (587 SE2d 600) (2003).

What is marital?

In general, any property acquired by the parties during the marriage is marital property. Property acquired as a direct result of the labor and investments of the parties during the marriage is subject to equitable division. McArthur v. McArthur, 256 Ga. 762 (353 S.E.2d 486) (1987); White v. White, 253 Ga. 267, 319 S.E.2d 447, 1984 Ga. LEXIS 900.

A Homemaker is just as entitled to marital property as a “bread-winner”

Equitable division in law provides that the service contributed by each spouse to the family unit is a factor to be considered when deciding how to divide marital property. in determining the manner in which marital property is to be equitably divided, jury or judge is authorized to exercise discretion after considering all the relevant factors, including each party’s contribution to the acquisition and maintenance of the property (which would include monetary contributions and contributions of a spouse as a homemaker), as well as the purpose and intent of the parties regarding the ownership of the property. Hemily v. Hemily, 403 A2d 1139 (D.C.C.A. 1979)

Separate Property

Georgia law provides that the separate property of each spouse shall remain the separate property of that spouse, except as specifically provided by other laws. See O.C.G.A. § 19-3-9. Generally, a property interest brought into a marriage by one spouse is a non-marital asset and is not subject to equitable division. Campbell v. Campbell, 255 Ga. 461, 462 (339 SE2d 591) (1986).

What this means is that unlike marital property, separate property is not subject to equitable division in Dekalb, Gwinnett, Fulton, Cobb, or within the State of Georgia. See Payson v. Payson, 274 Ga. 231 (2001); Campbell v. Campbell, 255 Ga. 462; Moore v. Moore, 249 Ga. 27 (2) (287 S.E.2d 185) (1982). The appreciation in value of a non-marital asset during the marriage is a marital asset subject to equitable division if the appreciation is the result of the efforts of either spouse or both spouses, but if the appreciation is only the result of market forces, the entire asset will remain a non-marital asset and not be subject to equitable division. Bass v. Bass, 264 Ga. 506 (448 S.E.2d 366) (1994).

In Georgia separate property is not subject to equitable division. See Payson v. Payson, 274 Ga. 231 (2001). Property that has been acquired by one spouse before the marriage is a non-marital asset, and it is not subject to equitable division upon divorce since it was not generated during the marriage. Payson v. Payson, 274 Ga. 231 (2001).

Not only is property brought into the marriage considered separate property, but property obtained during the marriage, such as gifts and inheritances, received by one spouse may also be considered separate property. Dasher v. Dasher, 283 Ga. 436 (2008). Additionally, if the premarital property brought into the marriage by either spouse appreciates in value during the marriage due to market forces, this appreciation in value is also considered the non-marital or separate property of that spouse. See Bass v. Bass, 264 Ga. 506 (1994).

Most people do not get married as they plan for divorce. Therefore, in many cases a person with separate or pre-marital property will find themselves at risk for having to give up part of what they have worked hard to earn. Even if a spouse owned their house prior to getting married and they are the only person on the deed and mortgage a portion of the house may be considered marital property and subject to equitable distribution. Whether this is fair or not is a matter to take up with your elected officials, but the fact remains that this is the law. Let Dan Palumbo put you in the best position to keep all of, or as much a possible of your separate property; or to have the maximum amount of property be deemed marital and subject to equitable distribution. dan@palumbolawga.com

However separate or non-marital property may have a marital component upon divorce. This depends largely on whether that spouse actually kept his or her separate property separate. For example, if husband came into a marriage with a $25,000 money market account and wanted that account to remain his separate property, he should keep that account in his own name, refrain from depositing any marital funds into the account, and refrain from co-mingling those separate funds with any marital funds. Another example would be if wife inherited stocks from her uncle during the marriage. To keep that stock as her own separate property wife should open her own investment account, and not use the account for any investments that she and her husband own together; furthermore, any dividends from the stocks should stay in an account titled only in wife’s name, and any stock splits or additional share purchases should be solely in Wife’s name.

Let Dan Palumbo apply the facts of your case to help determine which property should be deemed separate and what should be deemed marital. 470-275-1500.

Specific Property Issue: Do you really want the house?

In many divorces, a main issue is who will keep the marital home. In Georgia, the marital home is subject to equitable division just like any other property, and is included in the split of all marital property/assets. In general, if one spouse keeps the home, the other spouse will usually assets to make the split equitable.  Almost all parents want what is best for their children divorce or no divorce. So many divorcing parents try to keep the children in the home to keep their lives as unaffected as possible.  However, this may not be in everybody’s best interest, or even economically feasible.

Can you afford to stay in the house? –  As part of a divorce, gross monthly household income will usually decrease. While there may be alimony it may not be sufficient to pay the mortgage, and child support will only continue for a limited period of time. Before agreeing to take the marital home make sure you are able to: 1. Refinance the house into your name only, and 2. make the mortgage payment for the next 20 or thirty years while also being able to afford other costs such as homeowners insurance, utilities, general upkeep and unexpected repairs. Dan Palumbo will help you make a spreadsheet of your monthly income and expenses to see what you can afford, before fighting to get the house.  Let’s discuss how you may be better off receiving a portion of the home’s net equity or receiving the home itself.

Does it make sense to stay in the house? Often, divorcing couples are so caught up in the divorce process and “getting everything” that they may end up with something they don’t even want. It it prudent to take a step back and ask yourself if staying in the house makes practical sense.  Will your ex have primary physical custody of the kids? If so, staying in a big house may unnecessary. Will staying in the house prevent you from emotionally moving on with your life? There are many instances when moving may make the most sense for you.

Specific Property Issue:  Military Benefits as Marital Property

The Supreme Court of Georgia recently made a ruling that has the potential to affect every member of the military going through a divorce and dividing assets. In Michel v. Michel, 286 Ga. 892, 893 (2010), the parties were married from September 1995 to February 2002, and then remarried from September 2002 until June 2009. In the 2009 divorce action, the wife sought a portion of the husband’s military retirement benefits as equitable division. Id. The trial court denied the wife’s request, finding that the current marriage at issue was only seven years and, pursuant to a code section of the Uniformed Services Former Spouses’ Protection Act, it could not award the wife an equitable portion of these benefits since the marriage was not ten years or more. Id. The wife appealed, alleging that the trial court erred in ruling that it had no authority to award her a portion of these benefits, and the Supreme Court of Georgia agreed with the wife. Id. The Court held that “the Former Spouses’ Protection Act affirmatively grants state courts the power to treat military retirement benefits as marital property that is subject to equitable division upon a divorce.” Id., citing 10 USC §1408 (c)(1); Mansell v. Mansell, 490 U.S. 581, 584 (1989). In addressing the ten-year marriage requirement, the Court held that the requirement “is simply a limitation on the direct payment” of funds from the Federal Government to the former spouse, and “it has no bearing on a state court’s authority to treat military retirement benefits as marital property subject to equitable division, even when a marriage lasted less than ten years.” Id.
Dan Palumbo will help you get all the benefits you deserve from a military pension or Thrift Savings Plan Account. He is well aware of the importance of maintain TriCare Benefits, making sure your child receives GI Bill benefits. Call today 470-275-1500