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What does fair and equitable mean?

On Behalf of | Jan 4, 2021 | Family Law

When you divorce in Georgia, Georgia law requires you and your spouse to divide your marital property in a fair and equitable manner. The law, however, does not define what this term means. Nor has any court ever defined it.

FindLaw explains that courts decide what constitutes a fair and equitable marital property division on a case-by-case basis. In other words, while it may seem obvious that a 50/50 split undoubtedly is fair and equitable to both parties, such is not necessarily the case.

Fair and equitable considerations

Many factors, including the following, come into play when determining what fair and equitable means in your precise situation:

  • The respective ages of you and your spouse
  • Which of you will assume primary care and custody of your children
  • Which of you, if either, has health problems that result in unusually high medical or prescription costs
  • The comparative amounts of your respective separate property
  • Which of you, if either, dissipated marital assets in order to support a drug, alcohol or gambling addiction

Separate property

Keep in mind that Georgia’s fair and equitable distribution mandate applies only to the marital property that you and your spouse own. Your respective separate property is exempt and remains owned 100% by the spouse whose property it is.

For instance, any gifts or inheritances you received while married still belong to you, and your spouse has no claim to them. In addition, the same applies to whatever property you owned prior to your marriage. As stated, however, the amount of separate property each of you owns becomes a factor when determining a fair and equitable distribution of your marital property.

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