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Who decides the split of property in a divorce?

When parents go through a divorce, the questions of who gets custody of the children, when and how visitation will occur, and whether a party must pay child support are usually at the top of the list of their concerns. But when those issues are squared away, the question of gets to keep what property often crops up as an issue between the parties. So, who decides how property gets divided when a couple in Georgia decides to end their marriage?

Ideally, the parties themselves would be able to reach an agreement on their own. A joint marital settlement agreement that covers all the issues, including property division, should be a goal of any divorcing couple. In this way, if the parties are reasonable, the cost and stress of litigation can be avoided while both sides can be, if not happy, at least satisfied, with his or her share. Unfortunately, in many cases this does not occur, and the parties end up in a trial.

Georgia is an equitable distribution state, which means that marital property is divided fairly between the parties, though this does not necessarily mean equally. The problem is, the written statutes do not specifically define what equitable distribution is, so the rules are somewhat vague, and come from case law. According to this line of cases, the question of what categories of property are "marital property," that is, what property gets distributed between the parties instead of belonging to one of them separately, is a question of law and fact. This is a complicated process that may involve both the judge and the jury, if there is one. What is an equitable distribution of property, however, is decided by the "trier of fact," which will be the jury or, if the trial is a non-jury trial, the judge. While there may be indications of how someone would decide these issues, in any particular case, it is impossible to know specifically how the property will be divided.

As should be clear the process of property division in divorce cases can become very complicated very quickly, especially when many assets or debts are involved. To come to a negotiated solution is a good way of keeping uncertainty to a minimum, but to do so while protecting's one's interest, people involved in divorce cases may wish to consider seeking the counsel of a Georgia family attorney.

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