Property Division: How is property divided in a divorce? And what about the debts?

Atlanta, GA family law attorney Judith Delus Montgomery talks about how people commonly divide their property and assets in a divorce.

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So we always look to see when you’re talking about property division, you know, the goal is if the parties can divide the property themselves, that would really be the best way to go about it. We really don’t want to get into a situation where folks are fighting over pots and pans or the patio furniture, but we hope that the parties can divide the property on their own, the assets and the properties on their own. If not, then a mediator would come in. Most counties require, have a required mediation that you have to make at least a good faith effort to mediate and work out those division of properties, but a lot of times those things may have to go to trial, and so usually they can be divided hopefully 50/50.

Georgia is interesting in that a party can allege adultery and that will affect property division, surprisingly. And so if the party can prove that there has been adultery and but for the adultery the parties would still be together and still be a unit, the party who is responsible for the adultery, they will probably get less. So we’ve seen where there has been 60/40, 70/30, and the division of property based off a adultery. A lot of times debt will be divided 50/50, but there are times where one party may decide to take the debt as their responsibility and may offset something else.

So for example, if there was a credit card where the parties used jointly, but one party is saying instead of me having to pull money out of my 401K I will go ahead and take the debt completely and that offsets what I would have to pay to that other party in my 401K. And I’ll tell you, people would rather do that than have to give any portion of their 401K. Sometimes you can’t avoid it, but that’s usually how debt goes. It’s either going to be 50/50, or it’s going one party may say I’ll take it, or the courts may have to decide what that end result will be as it relates to debt.

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