Dividing Assets After Divorce: How Is It Done?

We often receive questions from clients who want to know more about dividing assets after divorce. For example, how does a court make the decision about how to divide marital property? What happens to property that one of the spouses owned prior to the marriage? Will the court consider an agreement about property division in a prenuptial agreement? Divorce law in Georgia is complicated, and each case is different. However, in this article, we provide you with some answers to frequently asked questions concerning the division of assets after filing for divorce.

Can My Former Spouse and I Come to An Agreement About Property Division?

Generally speaking, if the parties who are getting divorced can agree to a property settlement, and the court decides that the agreement looks like it is fair to both of the parties, then the court typically will accept the property settlement. For example, even though two people are getting divorced, they may have a relatively good working relationship and may be able to figure out a property settlement that is equitable to them both.

If the couple does not agree to a property settlement or if the court determines that it is unfair, then the court is responsible for dividing marital assets.

What Method Does the Court Use for Dividing Marital Assets?

Like a majority of states in the country, Georgia courts use a theory of “equitable distribution” when dividing or distributing marital property. You should keep in mind that the court not only divides marital assets, and but it also divides marital debts. As such, when it is determining which spouse should receive ownership of a particular asset, it will also take into account debts from the marriage that the spouses share.

Equitable distribution means that assets will be divided in such a way that is fair to both of the parties. In rare cases, equitable distribution results in an equal, 50/50 split of the marital assets, yet it is important to remember that “equitable” does not mean “equal.” Assets will only be split down the middle if the court decides that such a division would be fair to both of the parties.

Does the Court Consider Language in Prenuptial Agreements?

If you have a prenuptial agreement—also known as a premarital agreement or a “prenup”—that outlines how marital assets will be divided in the event of divorce, the court typically will follow what the agreement. However, if the prenuptial agreement was entered into fraudulently or under duress, or if the court determines that it should not be enforced because it is unconscionable, then the court will divide the marital assets according to the theory of equitable distribution.

Discuss Your Case with a Georgia Divorce Attorney

If you have questions about dividing assets after divorce in Georgia, you should speak with an experienced Georgia divorce lawyer about your case. Family law is extremely complicated, and you should have an advocate on your side to ensure that you get a fair deal. A compassionate attorney at our firm can discuss your situation with you today. Contact Mitchell & Crunk for more information.