Georgia is an equitable division state. This means that, upon a divorce, the property of the parties is divided equitably between them (though not necessarily equally). The exception to equitable division is separate property. In Georgia, “the separate property of each spouse shall remain the separate property of that spouse.” OCGA §19-3-9. Basically, this means that any separate property is not included in the marital estate and, thus, is not subject to equitable division.
Some examples of separate property include an inheritance, gifts, real property or bank accounts. One must be careful, however, to keep separate property separate, or it may convert into marital property subject to equitable division. Consider, for example, if a spouse inherits a large sum of money from a deceased relative. If the spouse puts the money into a separate account bearing only that spouse’s name and does not commingle the funds with marital funds, the account will continue to be treated as separate property, and that spouse would take the entire account upon divorce without any offset to the other spouse. However, if the spouse adds the inherited funds into a joint account in the names of both spouses, or opens a new account but adds the other spouse’s name to that account, he/she is treating the funds as marital, rather than separate, and they will likely be treated as marital upon divorce. In addition, if it is a separate account, but both spouses subsequently deposit funds into it, a portion of the account may be treated as separate and a portion treated as marital.
Separate property can be a complicated issue during a divorce, particularly if funds have been commingled. The calculation for figuring out how much is separate and how much is marital can be complex and, if not done correctly, can result in the entire asset being treated as marital and subject to equitable division. It is important that you speak to an experienced family law attorney if you are dealing with this issue in your divorce.