Step 5: Asset division, child custody and spousal support
When there is a contested divorce, it almost always involves at least one of the following issues: Child custody, spousal support or property distribution.
In Georgia, the divorce courts adhere to the principle of “equitable distribution” which divides marital property in a fair way. Marital property is distinct from non-marital property, which is
- Acquired before the marriage; or
- Received through inheritance or gift
- Excluded due to a prenuptial agreement
A judge will use the following factors determine how to distribute assets and liabilities:
- The financial circumstances of each spouse
- Contributions made to the marriage, including non-monetary ones
- Wrongdoing which engendered the divorce, i.e. desertion, adultery
- Length of marriage
- Age and health of both parties
- The circumstances surrounding the acquisition of the property
- Welfare of the children
An independent evaluator may determine the value of assets, or you and your spouse may agree to a fair amount. If no consensus can be reached, the judge may make a ruling on the value. a judge may award any property to one party or split it among the spouses. If a property cannot be split, a judge may award it to one spouse while awarding financial compensation to the other.
In order to receive spousal support, a spouse must meet certain eligibility requirements.
- No or lesser fault in the divorce. In other words, a spouse who commits adultery or other wrongdoing may be barred from receiving alimony.
- Each spouse’s earning capacity.
- The standard of living during the marriage
- Contributions to the marriage
- Age and health of each spouse
- Length of marriage.
This spousal support may award temporary or permanent alimony in divorce cases (permanent does not mean indefinite but rather ongoing following the divorce). In many cases, permanent spousal support is reserved for longtime spouses in poor health or advanced age. a judge has wide latitude in determining this amount which may involve periodic payments, a lump sum, or both.
The welfare of any minor children from the marriage are the paramount concern in any child custody ruling. In making his determination, a judge may consider the following factors:
- If the child is 14 or older, they may decide who to live with. Between 11 and 14, a judge will consider their wishes.
- Parent-child relationships
- Sibling relationships
- The parent’s ability to financially provide for the child
- Safety of the child
- Physical and mental health of parents
- Parent’s professional responsibilities and work hours
- Domestic abuse or violence
- Criminal activities
Georgia law requires that each parent submit a parenting plan which determines the parenting schedule and where the child would reside throughout the year. This plan should also include how major child-rearing decisions are made.
Following consideration of parenting plans and other factors, a judge may award sole or joint custody. Joint custody in Georgia often reduces financial support or eliminates entirely because both parents are actively involved in upbringing.