When negotiating an uncontested divorce case in Georgia, it is important to know what the court may decide regarding your assets in the event you do not reach an agreement with your spouse. One area of concern for many clients is the division of the marital property. Below is a discussion of how Georgia courts generally decide how to divide marital assets in the absence of an agreement by the parties.
However, it is important to note that if the parties do reach an agreement regarding the division of their assets, in Georgia the parties can generally file an uncontested divorce (assuming they agree on all other aspects of the divorce also). The court will presume that the division of the marital assets in a Georgia uncontested divorce is equitable unless proven otherwise later.
It is also important to note, once marital assets have been divided in a Georgia uncontested divorce (or contested) that the court’s order cannot generally be changed (modified) at a later date. This is sometimes a source of great distress afterwards for someone that later strongly regrets a decision they made in an uncontested divorce, or feels they were poorly represented in court. Understanding these concepts is the first step to making the best decision for yourself in a Georgia uncontested divorce case.
While Georgia law mandates an equitable distribution of marital assets in a divorce case, this does not mean spouses an equal (50/50) division of the marital assets. Equitable division under Georgia divorce law means a fair division of the property considering many factors; and this does not always result in an equal division of the marital assets. See Fuller v. Fuller, 621 S.E.2d 419 (Ga. 2005). Goldstein v. Goldstein, 262 Ga. 136 (1992).
Equitable Division of Marital Assets in Georgia
Equitable division of assets is the judicial idea that in a divorce, a court must divide marital property in the most fair, just manner possible while still considering the best interests of each of the spouses. This does not mean the property has to be divided equally, only justly. Georgia is an equitable division state, meaning that judgement in divorce cases are led by this exact principle.
In equitable division of marital assets in Georgia divorce cases:
- Assets are divided on a case by case basis where the court considers multiple factors. Factors considered include the emotional needs of children, misconduct that may have occurred in the marriage (such as fraud, duress, adultery, etc.), standards of living of each spouse, and probable post-divorce financial conditions.
- All asset and debt information must be disclosed to the court by both parties. Debts and assets are both subject to equitable division, and hiding debt or asset information is categorized as fraud.
- Generally, the custodial parent stays with the children in the marital residence.
- All marital assets are accounted for and divided by the court. This includes children, family pets, and sentimental items.
Non-modifiability of a Georgia Uncontested Divorce Order Dividing Marital Assets
Equitable division of assets, unlike other divorce matters such as child support and alimony, is not modifiable. This means that once a judge gives his final judgement in a divorce case for what is the equitable division of assets, the decision is not subject to change or abatement, even in instances where one or both of the parties pass away or remarry. This puts extreme importance on the judge’s decision, since the word is final.
Exceptions to Non-Modifiability of a Georgia Uncontested Divorce Order Dividing Marital Assets
There are very few exceptions to the non-modifiability rule, and the exceptions are often difficult to prove. These exceptions include:
Fraud. If one spouse can prove that he or she has been intentionally deceived by the other spouse on a legally important matter, the court will likely vacate the property settlement and order an entirely new distribution of property. Fraud includes deliberately hiding certain assets.
Duress. Just like in the case of fraud, if one spouse can prove that the other spouse has put an unusual amount of pressure on him or her to act in a certain way, the court will likely vacate the property settlement and order an entirely new distribution of property. Duress is particularly difficult to prove because a judge will automatically assume that there is a certain inherent amount of stress and pressure put on each spouse in the legal argumentation of a divorce case.
Motions to Reconsider. One may file a motion to the court to reconsider the decision of a judge. The motion must be filed after the inception of the court’s final order but before the end of term of the court during which the judgement was handed out. This particular timing comes very quickly and can be difficult to pinpoint without professional legal guidance. Even in successfully filing for a motion to reconsider, it is very rare that a court will grant a spouse’s plea for reconsideration.
Appealing the Decision. One may appeal the decision of the judge to a higher court; however, this option is fairly difficult to achieve. Appellate courts are picky when it comes to what divorce cases they will hear, so it is highly recommended to consult with an experienced divorce attorney to help argue your case.
Please note: uncontested divorce cases have different constraints and regulations depending on the U.S. state in which you’re currently residing. This article details the particulars of equitable division of marital property in the context of an uncontested divorce case under Georgia law. It is always recommended to have an attorney present when dealing with divorce, family law and other legal matters.
Divorce is a tricky, strenuous decision in one’s life; don’t go through it alone. Call us at 770-709-1247 to discuss your case with one of our experienced divorce and family law attorneys today. We offer free consultations to qualifying potential clients and offer weekend appointment. Contact >