What Factors Can Impact Division Of Assets And Debts In A Divorce?
Georgia law provides that all “marital” assets and all “marital debts” shall be “equitably divided.” “Equitably” means “fairly.” Well, what does “fairly” mean? It means whatever a judge (or a jury if one of the parties elects to go before a jury) thinks is fair, which could range from you getting nothing to you getting everything or anything in-between. In deciding what is equitable or fair, the judge and jury can consider just about anything, including how the parties conducted themselves during the marriage, who contributed what during the marriage, what each of them will be able to do and provide for themselves after the marriage, etc.
As a rule of thumb, most judges start with the presumption that 50/50 is fair, and will adjust from there depending upon the facts and circumstances. With regard to juries, either party asks for a jury, then there will be a jury. Most people, nowadays, do not opt for a jury trial, because it is more complicated and takes more time and money to do. You usually see jury trials when there is a lot of money at stake and one of the parties thinks they have an emotionally driving argument that the jury will buy into to give them more money than a judge would.
An important point here is that only “marital” property and debts are subject to being “equitably divided.” “Separate assets” are not. This often is an important point. The easy example I give is let’s say the husband has his old high school car from years before he was married which was paid off when he got married. Then normally that would be his separate property that he gets to keep. Another example is if a party inherits money from their family, that inheritance remains their separate property after divorce, UNLESS they mixed it, that is to say, commingled it. That means, for example, if you inherited a beach house form your family, if you subsequently deeded it to yourself and your spouse, it is now marital property. Or, to the extent you spent funds on it during the marriage, for a mortgage or repairs for example, then arguably that portion of it is subject to being equitably divided. So it can get complicated.
For military members, it is important to note that military retirement pay is indeed divisible as part of a divorce proceeding. This is true regardless of whether the service member has retired yet or not and regardless of how long the non-military spouse was married to the military member. A lot of people have the misconception that you have to be married to a military member 10 or more years of their service to get an equitable division of their military retired pay. This is not true. Technically, one day is enough (though practically speaking no judge or jury would likely award you anything for one day of marriage during the military service). Federal law says two things about division of military retirement in a divorce: (1) If State law allows division of retirement pay as part of a divorce, which Georgia does, then military retired pay is also subject to being divided, and, (2) if a spouse of a military member or retired military member is awarded a portion of that retirement, and if they were married for 10 or more years overlapping with the military service, then instead of getting their check from the military member each month, they can get it directly from DFAS. So far as how much can you get, again, Georgia is an “equitable division” state, which means you are entitled to an “equitable” or “fair” share, which hypothetically could be anything from none to all. Practically speaking, judges often apply a formula to calculate how much is “equitable” or “fair”: # years of marriage during military service divided by # years of service at retirement times one-half. So, for example, if a couple got married while the husband was serving, he retired 10 years later but at retirement had served a total of 20 years (10 years before marriage and 10 years during marriage), then the formula would award 10/20 x ½ = .25 or 25%. Again, the formula is not law in the State of Georgia (it is in some other states), but judges and attorneys often use it as a guideline. But, for example, of the spouse was “running around” the whole time the military member was deployed, that would be an argument as to why they should not get so much.
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