How To Protect Separate Property

When you go through a divorce in Georgia, all of your assets and debts will need to be disclosed, and the court will need to determine whether all of those assets and debts should be classified as marital or separate property. Under Georgia law, all marital property will be divided between the spouses based on a range of equitable distribution factors, while separate property will remain the separate property of each spouse who owns it. When you have concerns about your assets that you believe to be separate property, or you are worried that the court will divide debts that should be classified as separate property of your spouse, what can you do to protect separate property and yourself? Consider the following possibilities from our Atlanta property division lawyers.

Enter Into a Prenuptial or Antenuptial Agreement

 One of the best ways to protect your separate assets and to ensure that your spouse remains responsible for separate debt is to enter into an agreement. Premarital agreements (also known as prenuptial agreements) are extremely beneficial, but these agreements must be created prior to the date of the marriage. Yet in Georgia, even if you are already married, you can still enter into an antenuptial agreement with your spouse concerning separate property. For the antenuptial agreement to be valid, it must be in writing, both of you must sign it, and you must have two witnesses, including one who is a notary public.

Know What Counts As Separate Property

 To protect separate property without an agreement in place, you will need to know what types of assets and debts the court will classify as separate property. Generally, any property acquired or accrued prior to the date of the marriage will be separate property. In addition, assets acquired during the marriage through a gift from a third party or an inheritance will be classified as separate property. Any assets acquired during the marriage in exchange for existing separate property can also be classified as separate property.

Keep Receipts and Documentation 

Be sure to keep receipts and documentation that can help to show that certain assets are separate property. In addition, you should seek out any documentation that shows your spouse’s debt was accrued prior to the date of the marriage if you have concerns about the division of debt.

Avoid Commingling Property 

To protect your separate property, you must avoid commingling it. If you have an account that includes separate assets, do not use the account to hold any marital assets, for example, and do not use any separate assets to pay for improvements to marital property. You should also take care to ensure that your spouse’s name is not added to the account, title, or deed to any property you wish to remain separate.

Contact a Property Division Attorney in Atlanta for Assistance

 If you are planning to file for divorce or know that you will soon be going through a divorce in Georgia, it is critical to take steps to protect your separate property during the property division process in your divorce case. While it can be stressful to know that the court will be dividing all assets and debts from your marriage, there are ways you can protect your separate property. You should contact the experienced Atlanta property division attorneys at Kaye, Lembeck, Hitt & French to learn more about options to protect your separate assets and to avoid taking on your spouse’s separate debts.

 Sources:

ga.elaws.us/law/19-5

law.justia.com/codes/georgia/2018/title-19/chapter-3/article-3/section-19-3-62/#:~:text=Requirements%20and%20construction%20of%20antenuptial%20agreements,-Universal%20Citation%3A%20GA&text=An%20antenuptial%20agreement%20shall%20be,shall%20be%20a%20notary%20public