This is part one of a four-part series.
Equitable division is the theory of recovery in a divorce which enables one spouse to claim any portion of any marital assets that are not legally titled in the name of the spouse for whom they benefit. For example, a husband and wife purchase a home during the course of their marriage. Because the husband had bad credit, they decided to title the home in the wife’s name only in order to secure a more favorable interest rate on their mortgage. In the event of a divorce, the husband still has a claim to 50% of the equity in the home because it was purchased for the benefit of both him and his wife. Similarly, the Husband is also obligated to a share of the mortgage debt (a future post in this series will elaborate on how mortgages are dealt with in a divorce).
This theory of recovery plays out in a variety of other ways when couples become married or divorced. If premarital funds are intermingled with joint marital funds, the other spouse may have a claim against those funds in a divorce. Therefore, if one spouse wants to protect his or her premarital assets, a prenuptial agreement may be necessary.
Conversely, if one spouse gives away or unilaterally spends joint marital funds after the parties separate, the other spouse may still have a claim on those funds. If the spouse who spent or gave those funds away does not have enough assets to “pay back” the other spouse, he or she may end up paying alimony for several years after the divorce is complete to repay the other spouse’s share. This is one of many reasons why it is important to seek legal advice immediately after a separation.
If one spouse disposes of joint marital assets before the parties separate, however, the other spouse may have much more difficulty recovering his or her share of those funds. Once the Complaint for Divorce is served on the other spouse, the Domestic Relations Standing Order and Georgia law prohibit either spouse from selling or transferring any property belonging to the parties. Unfortunately, a spouse involved in a marriage that has effectively ended may become penalized for delaying separation from his or her spouse.
Please revisit in the coming weeks for more information about how assets are divided in a divorce. Specifically, I will explain how assets are appropriated to each spouse, complicating factors regarding the division of assets, and ways to craft an agreement to each party’s advantage.
Please contact my office for information specific to your case. The above is for general information purposes only.
Source: Dan E. McConaughey, Georgia Divorce, Alimony & Child Custody, 2011-2012 Ed., West.