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How is Property Divided During Divorce in Georgia?

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In Georgia, divorcing spouses can decide how to divide their property by themselves or through a mediator. If they can’t come to an agreement, they can take the property division dispute to court, which uses state law to divide it.

Georgia is an “equitable distribution” state. This means marital property is divided fairly, not necessarily equally, upon divorce based on factors unique to the couple’s situation. Separate property is not divided.

Marital vs Separate Property

The distinction between marital and separate property is important because property division in Georgia depends on its classification.

Marital Property

Marital property is any asset or debt acquired by either spouse during marriage. It can include:

  • House
  • Stock investments
  • Cars and car loans
  • Furniture
  • Appliances
  • Bank accounts
  • Credit card debt
  • Gifts between spouses

Marital property belongs to both parties, regardless of whose name it is listed in. For example, suppose you bought a car a few years before you met your partner. A few years into the marriage, you bought another in your name and gave the old one to your partner. In that case the new car is considered a marital asset and is subject to be split.

All debt incurred during marriage is considered marital property unless the creditor only considered separate property of one spouse for repayment.

Separate Property

Separate property includes any asset or debt owned by either spouse. This includes:

  • Inherited property
  • Property acquired before marriage
  • Property gifted by independent third parties during the marriage
  • Property purchased with separate funds of a spouse
  • Personal injury awards received by a spouse

Any property owned by either spouse during the marriage is considered marital property unless a spouse proves it is actually separate property. Separate property isn’t split.


Under certain circumstances, property acquired before marriage can be considered marital and property acquired during marriage can be considered separate. These circumstances include:

  • An enforceable prenuptial or postnuptial agreement can designate property acquired during marriage as separate.
  • Inherited property willed to only one spouse during marriage is considered separate.
  • Property purchased with a combination of marital and separate funds is generally considered marital property. This is true even if a spouse proves that they used some separate funds.
  • Separate property owned by one spouse can become marital if the other spouse makes significant contributions or improvements to it. For example, a spouse paying for major renovations on a house owned by their partner.
  • If one spouse bought the house before the marriage, but the mortgage is paid during the marriage, the equity gained in the house is considered marital property.

These exceptions can affect the outcome of a divorce property division dispute. To understand how they can impact your property division in Georgia and how to handle them, consult the Petrelli Previtera, LLC Family Law attorneys.

How Courts Divide Marital Property In Georgia

To divide marital property in Georgia, the court first classifies property as marital or separate, then divides it.

Classifying Marital and Separate Property

Classifying marital and separate property begins with taking inventory of all property owned by either spouse then categorizing them as separate or marital property.

The court uses established laws and legal principles to classify property as marital or separate, but it is up to the judge or jury to determine the status of a specific item. They take prenuptial and postnuptial agreements into consideration.

After determining what property is marital and what is separate, they calculate the value of each asset and debt and detail it in a marital assets/debts balance sheet.

Dividing Marital Property

In community property states, each spouse is entitled to half of any property or asset acquired during marriage. Marital property is divided equally, not fairly, with each divorcee receiving 50%.

However, Georgia is an equitable distribution state, so property is divided according to what is fair or equitable. It sometimes results in equal distribution, but in many cases it doesn’t. Georgia courts consider the following factors when deciding how to divide marital property fairly and equitably.

  • Prior marriage of either party
  • Age, health, and employability of each party
  • Contributions of each spouse to the family
  • Income and earning capacity of each spouse
  • Separate assets of each spouse
  • Alimony awarded to either spouse
  • Future needs of either spouse, such as retirement planning
  • Each spouse’s debt

The court may also consider the reason for the couple’s separation, such as adultery or abandonment, to determine how to divide the marital property.

Unlike community property states, courts have complete discretion during property division in Georgia. They aren’t bound by any formulas or rules. A judge distributes the property in any proportion they believe is fair under the circumstances of the case.

Contact a Georgia Divorce Lawyer to Protect Your Interests

Property division in Georgia during a divorce involves various complex laws, considerations, exceptions, and discretions, so it can be confusing. To protect your personal interests as you navigate this intricate landscape, seek legal advice from experienced Georgia attorneys like the Petrelli Previtera, LLC Family Law lawyers.

The Petrelli Previtera, LLC team in Covington, Georgia, supports clients in all family law issues, from divorce, separation, and custody to property disputes. We can help you protect your separate property, assess the value of your marital property, and seek the ideal split. Call u  s to consult on your unique circumstances.


1. Who lives in the marital residence during a divorce?

If the couple has children, the custodial parent remains in the marital home with them. If they don’t have kids and the house is owned by one spouse, the owner can ask the other to leave. If they don’t have kids and own the house together, none can kick the other out. The only way one spouse can leave is in case a judge grants a restraining order.

2. How are retirement benefits divided in Georgia?

Retirement benefits like 401(k)s, pension plans, and IRAs that predate the marriage are considered separate property. But any deposits made or interest earned after the marriage are deemed marital, so they are divided equitably.

3. Do I have to go to court in property division disputes in Georgia?

No, you don’t. If you don’t want to go to court, you can negotiate the property division with the help of a mediator and enter into a written settlement agreement. Only when you can’t come to an agreement do you need to go to court.

4. Do I have to disclose all details about my assets and debts?

Yes, you must. If you don’t, you may be ordered to pay a fine, pay the other party’s attorneys fees, or face other court sanctions.

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Here's what our clients have to say about working with us. Please note, results may vary based on individual circumstances.

Melinda Previtera, Esq. came highly recommended to our family. Her knowledge base, professionalism, and compassion paved the way for a successful outcome. Melinda is efficient, detailed, and informative. She helps manage expectations, and postures her client for a fair and equitable result. We are happy to recommend Melinda!

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My marriage life has been a hell for me for the past four years until I decided to put an end to what has to be ended. Choosing a lawyer was another additional stressful part of the long process. I’m so glad that I’ve found the right one for me at Petrelli Previtera. Life isn’t always fair, but at least having her in my corner, felt even better. I couldn’t recommend her highly enough!

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