Legal Question in Family Law in Georgia

Re: Community Property

Georgia is not a community property state. Instead, it is what is called a "marital property" state. The difference is that, unlike in a community property state, during the marriage property which is not in joint name can be controlled only by the person whose name it is in. In other words, no right to manage or dispose of all property. But, when divorce comes into the picture, marital property works a lot like community property, except that in a community property state, community property is usually divided 50/50. In a marital property state, its subject to "equitable division" (whatever the judge thinks is fair). The division usually ends up somewhere between 50/50 and 70/30. But, the reality is that it is usually the wife who gets the 70 unless she has a lot more or earns a lot more than the husband. In most cases, the husband is lucky to get a full 50%, unless he's a lot poorer.

The definition of marital property is a lot like community property---it is all property acquired during the marriage other than by gift, inheritance, etc.

So, property you acquired before the marriage would not normally be marital property and could not be given to or divided with your spouse in a divorce.

However, the problem with real estate is that people typically pay mortgages over 30 years or so. If this property were fully paid off before you were married, it would not be marital property. However, if a mortgage continued to be paid after you were married from your or your spouse's current earnings, that part would be marital property. So, what you would have is property that is part separate, and part marital. In determining what part is marital, they will usually look at what percentage of the payments were made before and after the marriage. So, if 35% of all payments were made after the marriage, 35% of the equity in the property is likely to be considered marital property and subject to equitable division.

Feel free to e-mail me at [email protected] if you have any questions or need further assistance.

Re: Community Property

Georgia is not a community property state. Instead, it is what is called a "marital property" state. The difference is that, unlike in a community property state, during the marriage property which is not in joint name can be controlled only by the person whose name it is in. In other words, no joint right to manage or dispose of all marital property during the marriage.

But, when divorce comes into the picture, marital property works a lot like community property, except that in a community property state, community property is usually divided 50/50. In a marital property state, its subject to "equitable division" (whatever the judge thinks is fair). The division usually ends up somewhere between 50/50 and 70/30. But, the reality is that it is usually the wife who gets the 70 unless she has a lot more or earns a lot more than the husband. In most cases, the husband is lucky to get a full 50%, unless he's a lot poorer.

The definition of marital property is a lot like community property---it is all property acquired during the marriage other than by gift, inheritance, etc.

So, property you acquired before the marriage would not normally be marital property and could not be given to or divided with your spouse in a divorce.

However, the problem with real estate is that people typically pay mortgages over 30 years or so. If this property were fully paid off before you were married, it would not be marital property. However, if a mortgage continued to be paid after you were married from your or your spouse's current earnings, that part would be marital property. So, what you would have is property that is part separate, and part marital. In determining what part is marital, they will usually look at what percentage of the payments were made before and after the marriage. So, if 35% of all payments were made after the marriage, 35% of the equity in the property is likely to be considered marital property and subject to equitable division.

Feel free to e-mail me at [email protected] if you have any questions or need further assistance.