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Separate Property

Separate property is a critical issue in many Georgia divorces, especially in cases involving individuals or couples with a high net worth or complex assets. Separate property is not subject to equitable division in a divorce, which is why understanding which property is marital and which is separate is so important. Yet the issue of separate property is a complicated question in Georgia. Fortunately, attorney Caroline Kresky and her team at Kresky Law are knowledgeable and experienced when it comes to resolving difficult questions or disputes over separate property. Contact Kresky Law for a consultation if you are contemplating divorce in Atlanta or if dissolution proceedings have already been initiated.

What Is Separate Property?

Generally speaking, separate property is nonmarital property that is brought into the marriage by one of the spouses. It stands in contrast to marital property, which is property acquired during the marriage, whether acquired by the spouses jointly or by one spouse alone.

This general rule contains significant exceptions. For instance, if one spouse inherits property during the marriage, that inheritance is separate property so long as it is maintained appropriately. The same goes for gifts given specifically to one spouse during the marriage. Those gifts are separate and can remain separate if treated properly. This rule does not apply to interspousal gifts, however, which are considered marital property. This is assuming that marital funds were used to purchase the gift. Every situation is unique and must be analyzed by an experienced Georgia divorce lawyer who can advise whether a gift, inheritance or other asset is properly characterized as marital or separate.

It should be noted that both assets and debts are subject to equitable division in a Georgia divorce. Like assets, debts can be marital or separate, and it is equally important to ensure debts are properly characterized when considering the equitable division of property in a divorce.

Separate Property Raises Complex Questions

We have only scratched the surface regarding the complications regarding separate property versus marital property. Countless situations can arise which raise complex legal and factual questions to analyze and address. Some examples include:

  • Separate property that appreciates in value during the marriage
  • Improvements to separate property made through the combination of marital funds or the other spouse’s labor
  • Marital and separate funds that get commingled in the same account or used to purchase assets such as a home
  • A retirement plan or pension that began before marriage and continued to earn during marriage

A spouse who wants to keep separate property separate should be careful about how the property is titled, what it is used for, and how it is treated. A prenuptial or postnuptial agreement can also be an effective tool for stating clearly whether a particular asset is meant to be separate. At Kresky Law, we are skilled in both drafting and enforcing (or challenging) premarital or marital agreements. Our team also works with financial experts such as forensic accountants and others as needed to trace assets back to their origin and ensure they are correctly and fairly characterized.

Contact Kresky Law Today

For help with separate property questions in the equitable division of property in your Georgia divorce, including protecting your own separate property and ensuring the other party is accurately characterizing marital and separate property, contact the Atlanta offices of Kresky Law where you’ll find a dedicated, talented and tenacious divorce lawyer ready to represent your interests and make sure you are treated fairly.

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