When spouses divorce, a judge or jury divides all of their marital assets and liabilities between them. This article explores the basic components of equitable division and the manner in which it is effectuated.

Marital assets consist of all real and personal property acquired as a direct result of the labor and investments of the parties during their marriage.(1) Equitable division of marital assets requires distribution of property in a manner that is fair under the circumstances but not necessarily equal.(2) That same principle also applies to allocation of the debts accumulated during the marriage.(3)

A trier of fact has broad discretion to determine a fair distribution of the parties’ marital property. In the exercise of that discretion, the fact finder should consider “all the relevant factors, including each party's contribution to the acquisition and maintenance of the property (which would include monetary contributions and contributions of a spouse as a homemaker), as well as the purpose and intent of the parties regarding the ownership of the property.”(4) The fact finder also may consider the conduct of the parties, both during the marriage and with reference to the cause of the divorce.(5)

In one example of an unequal but fair division of marital assets, a trial court awarded a wife title to the marital residence, ownership of an Italian condominium, and fifty percent of her husband’s retirement accounts. That unequal distribution of assets was affirmed on appeal, because wife had presented evidence that she put substantial work and money into the marital residence, and her parents had purchased the Italian condominium and placed it in her name.(6)

In an example of an unequal but fair division of marital debt, a trial court assigned to wife the entirety of the indebtedness from her enrollment in law school during the marriage. The trial court based its unequal allocation on findings that a) husband, for financial reasons, had advised against wife attending law school, b) wife’s attendance at law school drained the parties’ financial resources, c) her long hours studying, joining a fraternity, and volunteering for projects at law school distracted wife from her family obligations, d) wife apparently had affairs with law school classmates, and e) the marriage ended close in time to wife’s graduation from law school. The trial court’s unequal allocation of the law school indebtedness was affirmed on appeal.(7)

Obviously, division of marital assets can include an award of real or personal property to one party or the other. Percentage interests in property also may be awarded.(8) Alternatively, equitable division may entail the sale of property and a specified division of the net proceeds of sale.(9) When dividing marital debt, the trier of fact may hold one party responsible for paying the debt, while at the same time requiring compensation to that spouse from the other spouse.(10)

(1) Wright v. Wright, 277 Ga. 133, 134, 587 S.E.2d 600 (2003); Payson v. Payson, 274 Ga. 231, 231-232(1), 552 S.E.2d 839 (2001). (2) Id. (3) See Partridge v. Partridge, 297 Ga. 272, 274(2), 773 S.E.2d 273 (2015). (4) Wright, supra, 277 Ga. at 134(3) (Citation omitted). (5) Wood v. Wood, 283 Ga. 8, 10-11, 655 S.E.2d 611 (2008). (6) Arkwright v. Arkwright, 284 Ga. 545, 547, 668 S.E.2d 709 (2007). (7) Zekser v. Zekser, 293 Ga. 366, 367-368(1), 744 S.E.2d 698 (2013). (8) Clements v. Clements, 255 Ga. 714, 714(1), 342 S.E.2d 463 (1986). (9) See Hollandsworth v. Hollandsworth, 242 Ga. 790, 791, 251 S.E.2d 532 (1979). (10) See Moore v. Moore, 286 Ga. 505, 690 S.E.2d 166, 167-168(1) (2010).

Previous Post Next Post