GSB Vol. 13, NO. 1, Pg. 14. Are We Witnessing the Erosion of Georgia's Separate Property Distinction?.

Author:Rachel A. Elovitz

Georgia Bar Journal

Volume 13.

GSB Vol. 13, NO. 1, Pg. 14.

Are We Witnessing the Erosion of Georgia's Separate Property Distinction?

GSB JournalVol. 13, NO. 1August 2007Are We Witnessing the Erosion of Georgia's Separate Property Distinction?Rachel A. ElovitzAs traditional notions of marriage and family continue to change, so do Georgia's laws regarding the regulation and dissolution of the marital unit. This article deals with the latter, specifically the metamorphosis of Georgia's laws regarding the distribution of assets.

Formerly in Georgia, marriage merged the property rights of the parties and placed all control in the husband.(fn1) By 1866, however, Georgia law provided:

All the property of the wife at the time of her marriage, whether real, personal or choses in action, shall be and remain the separate property of the wife, and, ., all property given to, inherited or acquired by the wife during coverture shall vest in and belong to the wife, and she shall not be liable for the payment of any debt, default, or contract of the husband.(fn2)

One hundred and thirteen years later, as a result of the U.S. Supreme Court's decision in Orr v. Orr,(fn3) the Georgia Legislature amended Section 53-502 of the Georgia Code to acknowledge each spouse's right to retain the property that he or she brought to the marriage, as follows: "The separate property of each spouse shall remain the separate property of that spouse except as provided in Code Title 30 and except as otherwise provided by law."(fn4) Through the years, however, this seemingly concise statement has been eroded by the Supreme Court of Georgia.

Stokes: A Merger of Consistency and Innovation

In 1980, the year following the amendment to Georgia's law, the Supreme Court decided Stokes v. Stokes.(fn5) There, the Court confirmed the Orr decision and the amendment of Section 53-502 of the Georgia Code.(fn6) In Stokes, the husband sued for divorce from his wife of 20 years and claimed an equitable interest in real and personal property, including the marital residence. At trial, the evidence was that the wife's father had deeded the land to the husband, that "a house was built," and that the husband then deeded the land and house to the wife.(fn7)

The trial court overruled an objection by the wife to the trial court's charge on equitable division of property. The jury awarded a three-fourth interest in the property to the wife and a one-fourth interest to the husband. The Supreme Court granted review of the decision, in pertinent part to determine whether the trial court erred in charging the jury on division of the marital property.

The charge given to the jury was as follows:

Now, the plaintiff by way of an amendment alleged that the house and lot at 450 Pinetree Drive, Lawrenceville, Georgia, was acquired by the parties in this case and placed in the name of Joyce Jones, defendant - Joyce Jones Stokes. The plaintiff contends that the purchase money for the house and the property and all mortgage payments were furnished by the joint efforts of the parties. And he contends that this property should be equally divided between the parties in this case., . .

., . .

., . [T]he, ., question is whether or not you think that there should be a division of the property involved between these parties., ., So I have provided a further portion of your verdict, "We further find that the plaintiff, ., `is' or `is not' entitled to division of the house and lot, ., ." If you find that a division of the property is proper then you would complete the following, "We divide said property as follows."(fn8)

In its analysis, the Supreme Court noted that it had previously "approved the equitable division of personal property,"(fn9) and then pointed to a separate line of cases in which it had upheld the division of real property incident to divorce.(fn10) As a result, the Court concluded that the trial court did not err in submitting the issue of property division to the jury and that the husband was entitled to an equitable interest in the marital home.(fn11)

Stokes is regarded as a milestone in domestic relations law, because, as noted in Justice Harold N. Hill Jr.'s concurring opinion, it "verifies" that which the Supreme Court had for years recognized, "the doctrine of equitable division."(fn12) Stokes was also revolutionary in that it established guidelines for the division of assets (again in Justice Hill's concurring opinion), as follows:

In a suit for permanent alimony incident to divorce or legal separation, the court or jury shall:

(1) Assign each spouse's real and personal property and assets at the time of the marriage, or inherited during the marriage, to that spouse.

(2) Equitably apportion between the parties the real and personal property and assets acquired during the marriage whether the title thereto is in the name of one spouse or both. (If necessary to an equitable apportionment, real property may be partitioned.) In making this apportionment, the court or jury shall consider the duration of the marriage, and any prior marriage of either party; the age, health, occupation, vocational skills, and employability of each party, as well as the contribution or service of each spouse to the family unit; the amount and sources of income, estate (see (1) above), debts, liabilities and needs of each of the parties, as well as debts against property; and whether the apportionment is in lieu of or in addition to permanent alimony (see (3) below) and the opportunity of each for future acquisition of assets and income by employment or otherwise.

(3) Provide permanent alimony, if it sees fit to do so, to one party in accordance with the needs of that party and the ability of the other party to pay, either from future earnings or the corpus of the estate whether acquired before or during the marriage (see (1) and (2) above), according to the condition of both parties, their separate estates, earning capacities, needs and fixed liabilities. (See Code 30-201, 30-209 as amended.)

Let me explain that paragraph (1), above, is an adaptation of Code 53-502, as enacted and as amended, and relates to the "separate property" of the parties; paragraph (2) relates to the equitable division of the property identified as the "marriage property" and implements Code 30-105; 30-118; and paragraph (3) relates to permanent alimony and comes from the Code sections cited. In my view, the jury should first identify the "separate property" (paragraph 1) and allocate it to the proper party (one share to the husband, if any, and one share to the wife, if any)...

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