High Asset Divorce in Georgia
What is a High Asset Divorce
A high asset divorce is a divorce that includes the division of various types of tangible property that have substantial monetary worth. This can include, cash, real estate, a business, investment and retirement accounts, numismatics, collections, and more.
Challenges of a High Asset Divorce
The primary challenge in obtaining an acceptable outcome of a high asset divorce is finding the best divorce lawyer. A high asset divorce is substantially unlike the typical divorce in Georgia. It is absolutely critical that you find a divorce lawyer (law firm) that is experienced in high asset divorce matters. It is further necessary to make certain that the chosen divorce law firm has a team of experts that can properly manage your case.
Which Divorce Process is Best for You?
Mediated Divorce If you and your spouse can discuss things without fighting, a mediated divorce offers lowers cost, less stress, and usually a shorter time to complete the divorce. A mediated divorce process finds agreement between divorcing spouses with the services of a single, neutral, third-party (mediator). The mediator facilitates the process but does not seek to have partil influence on any points.
Why consider a divorce mediator? Per the GaDivorceOnline.com website, the compelling explanation on why to hire a mediateor is: “Mediation attempts to change disputes from “win-lose” to “win-win.” Mediation is a non-adversarial process of helping people come to agreement on issues like parenting arrangements, support of children and spouses and division of real and personal property. Mediation occurs when a neutral third-party, who has training in dispute resolution, assists you and your spouse and helps you resolve the issues that are causing conflict and to make cooperative, informed decisions.”1
Uncontested Divorce are the most common form of divorce filing in Georgia. For an uncontested divorce both spouses agree to the terms of the settlement including spousal support, child custody, and the division of assets.
Contested Divorce are the least common and most expensive divorce filing in Georgia. In this situation, the spouses cannot come to an agreement via negotation, mediation, or arbitration and the entire matter is resolved in court.
If you are filing for divorce you should include request for Temporary Orders which can protect you as you move throught your divorce. For the immediate time, you can request spousal support, child support, right to remain in your current primary residence, and more. To further protect your interests, you can ask the court to formally block your spouse from liquidating or transferring assets.
Are temporary orders really necessary? It is definitely a good idea to get temporary orders in place and establish a certain level of stability during your divorce process. The NOLO.com website offers this example, “Let’s say a couple is divorcing: the husband moves out, and the wife who’s left behind needs money to feed and shelter the children. Realizing that her children would starve long before a full trial could be held, she is desperate for help. She can go to court to request a temporary order from a judge. Once the request is properly made, a hearing will be scheduled within days or weeks and a judge will issue his or her decision, either at the hearing or shortly thereafter.”.2
Personal Privacy and Public Divorce Records
It is understandable that people want to have as much privacy as possible for distasteful issues. There are mays to mitigate the level of detail about your divorce that become available to the public.
Arbitration is an excellent way to protect your privacy. By using divorce arbitration the details of arguments and discussions are done outside of the court system. The court reviews the finlal divorce settlement which is basically facts and figures – no salacious details.
In Georgia, divorce proceedings, are considered a public matter. Your divorce lawyer can request that the court seals the record to keep the details private. Examples of why a judge may allow all or part of a divorce record to be sealed are addressed in an article on the FindLaw.com website. Per the article, some of the most common reasons accepted by the court are: “Protecting victims of domestic violence, Protecting children from being identified in the proceeding, Protecting proprietary business information, Preventing the spread of false allegations”.3
There is no obligation for a court to seal any record. Hiring an experienced and skilled divorce lawyer provides your best chance to have your divorce records partially or totally sealed. For your lawyer to have your records sealed they must show reasons why all or some of the information could cause personal damage.
Division of Financial Assets
Basically, if it has financial worth, it is up for review, consideration and division. There are some assets that you may want to choose to not pursue. There are instances where an unknowing spouse can become entangled in a bad situation.
You would be harmed by taking over a family business that has massive debt of which you were unaware, real estate where there is considerable unpaid property taxes, etc.
- Bank Accounts
- Family Business
- Real Estate
- Retirement Accounts
- Investments Accounts
- Stocks, Bonds, & Securities
- Precious Metals
- Crypto Currency
Disclosure, Transparency, and the Law
Why Hiding Assets is a Terrible Idea
In the midst of realizing that your net worth is soon to substantially decrease, it is easy to become territorial, defensive, and motivated to protect what is yours. For many people, this drives them to hide assets, giving away assets, devaluing assets, and otherwise do any number of unethical acts.
It’s very common in a divorce with high net worth for each party to hire professionals to find, audit, and appraise the total value at stake. Here is why you don’t want to do such things:
As part of the divorce process, both parties are required to disclose all assets that they own or otherwise control. If found to be hiding assets a judge may find you in contempt of court. Any such assets found will be included in what is to be divided, and the judge will impose punitive sanctions. Consequently, the judge may harbor negative opinions of the person hiding assets which could impact other decisions on dividing assets.
It’s not particularly difficult to uncover hidden assets. Simply put, trying to hide assets is just not worth the risk. The best course of action is to be honest, disclose everything as required by law, and let your lawyer fight for you.
Finding Hidden Assets
How can anyone find hidden assets? It’s not as complicated as you may think.
- Discovery Process. This is an inital part of the divorce process. Your divorce law firm will request specific documents such as bank statements, tax filings, etc. We will look for odd transactions, especially remarkable recent transactions and progressive “bleed-offs of accounts”.
- Deposition. A deposition is effectively a meeting where, in this case, your spouse will appear with their lawyer and be questioned under oath. This process is usually recorded on video with full audio. During a deposition, your spouse, under oath, answers your lawyer’s questions. Lying in a deposition is against the law which makes a deposition a very powerful tool to uncover hidden assets.
- Public Records Search. A law firm can search public records for property transactions, titles, registrations, and more.
- Forensic Audits. We can employ skilled accounting professionals to review family business records, personal bank accounts, investment accounts, and more. This is similar to an IRS audit which is done to find telltale signs of suspicious actions.
If you are summoned to a deposition your divorce lawyer can help you to prepare and be with you during the deposition process.
Legal Protection for Certain Assets
Depending on the status of your marriage you may be able to take steps to protect certain assets. Generally these steps are on more solid ground if they are done well in advance of filing for divorce. A common way to protect assets in the event of a divorce is by creating a Trust.
Any existing Prenuptial Agreement can dramatically alter the course of property division in a divorce. If there is an existing prenup, you need to advise your divorce lawyer, and give them a copy to review.
Things That May Surprise You
A divorce, especially a high stakes divorce, is rarely a spontaneous occurence. It is very common that when a person senses that their marriage is headed to divorce, that they begin to do sneaky things with assets. They may sell-off property and hide cash, create trusts for children or friends, give”loans” to friends, reassign titles and deeds to other people, and more. The net effect is they are trying to take things of value and remove them from the soon-to-be divorce property division.
Another surprise that may arise is finding that your spouse has property of which you were unaware. This could be a condo occupied by a paramour, investment accounts, and more. A good divorce lawyer will know where to look, the questins to ask, and have the resources to find hidden assets.
Equitable Distribution Law in Georgia
Equitable distribution refers to a standard of judgment used in a divorce proceeding in Georgia. For the purpose of dividing property in a divorce, it is important to know that the term equitable does not mean equal.
Ideally, the divorcing couple can come to an agreement directly or through their respective divorce lawyers. If the parties cannot reach agreement on dividing assets, the divorce court can and will intervene to make such decisions.
Who Keeps the Home in a Divorce?
Keeping the family home is one of the most asked questions in a high-asset divorce. This is especially true when the divorce has minor children who attend local schools. Why does this matter? A recent article on the DivorceNet.com website offers this, “…a custodial parent (parent who primarily lives with the children) may have an advantage when it comes to getting the house in a divorce. One factor a judge will consider is the need to provide a stable home environment to any children. This usually means the custodial parent will receive the marital home as part of a divorce award.”. 4
How Does a Court Decide What is Equitable?
A divorce court takes into consideration a wide variety of factors . . . and do not overlook the influence a lawyer can have on the matter. A court may consider things such as how long the couple was married, the extent either spouse contributed to acquiring the asset, post-divorce needs of either party, the type of and value of each asset.
Premarital Property vs. Marital Property
Premarital Property refers to property you owned before you were married. Marital Property refers to property acquired during the course of the marriage (whether or not you were living together).
Typically, pre-marital assets are considered untouchable in a divorce. However, when pre-marital assets become commingled with marital assets you lose protection.
Real Property vs. Personal Property
Real Property refers to all types of real estate including your primary residence, vacation homes, farms, rental properties, commercial property, and undeveloped land.
Personal Property refers to property and assets such as cash, investment accounts, pensions, IRA, 401K, vehicles, watercraft, furniture, jewelry, collections, art, etc.
Private Club Memberships
Awarding Club Memeberships can present unique challenges because the rules of a third-party must be respected. The first thing to do is contact the Club’s management and ask about any rules or regulations pertaining to membership.
In most cases, the club’s governing body will respect the divorce settlement agreement and adjust their membership records accordingly. In any divorce case, determining the value of a private club membership is something that needs to be considered.
What is a QDRO?
A Qualified Domestic Relations Order (QDRO) is a domestic relations order that serves to allow the transfer of funds from a retirement account to another person. Normally a person is unable to access most retirement funds until they reach retirement age. A QDRO is a legal way used in a divorce to separate and reassign portions of the accounts funds.
Can a QDRO be part of my divorce settlement? Per the Department of Labor website, “There is nothing in ERISA or the Code that requires that a QDRO (that is, the provisions that create or recognize an alternate payee’s interest in a participant’s retirement benefits) be issued as a separate judgment, decree, or order. Accordingly, a QDRO may be included as part of a divorce decree or courtapproved property settlement, or issued as a separate order, without affecting its “qualified” status.”.5
Are you contemplating divorce in Georgia and are at risk of losing substantial wealth? We invite you to call our law firm at 678-880-9360. It’s easy to arrange a confidential meeting with a lawyer experienced in complex divorces.
CREDITS and FOOTNOTES
- 1 Staff Writers, “Divorce Mediation in Georgia”, MArch 7, 2021, Available from GADivorceOnline.com
- 2 L. Guillen, “Temporary Orders in Family Court: Quick Decisions on Support and Custody”, April 3, 2021, Available from NOLO.com
- 3 K. Pantekoek, “How Do I Get My Divorce Records Sealed?”, December 2, 2019, Available from FindLaw
- 4 K. Otterstrom, “Equitable Division of Marital Property in Georgia”, September 22, 2020, Available from DivorceNet.com
- 5DoL Staff, “FAQs about Qualified Domestic Relations Orders”, July 30, 2020, Available from Department of Labor
- Photo by Three-Shots, available at Pixabay