To modern ears, the common law conception of marriage sounds like a bad joke or possibly a feminist nightmare. The husband and wife were one, but the husband was the one.
Today, of course, a wife's separate property isn't subsumed into her husband's estate, as on the popular PBS series "Downton Abbey." Instead, when a couple divorces, most property is fair game for equitable division.
Two recent Georgia divorce cases are a reminder, however, that each party to a marriage can also have separate property.
Retirement Accounts and Equitable Distribution
In Curran v. Scharpf, the Georgia Supreme Court was presented with a case in which a jury had already decided that one of the retirement accounts in the husband's name was his separate property. This property was therefore not subject to equitable division in the couple's divorce proceedings.
The wife challenged this finding. On appeal, there were procedural issues involving whether the wife (through her attorney) had properly objected in a timely manner to the form of the jury's verdict. The Georgia Supreme Court did not accept this procedural argument.
The Court therefore went on to address the substantive question of whether there was sufficient evidence to support the jury's finding that the retirement account in question was the husband's separate property. The Court said that there was and upheld the jury's determination.
Marital Residence and Property Division
In another recent Georgia divorce case, a wife was able to show that the marital residence was her separate property. In Graham v. Graham, a judge awarded the wife sole possession of the house following a bench trial from which the husband was absent.
The husband appealed to the Georgia Supreme Court. He argued that he had not received sufficient notice of the date of the proceedings. The Court rejected this argument because the husband had failed to provide his part of a proposed pre-trial order.
The case was therefore decided on procedural grounds. But the outcome is nonetheless notable. Even in an age of gender equality, all assets are not necessarily subject to marital property division.
Separate Property and Atlanta Divorce
In Atlanta, many high-asset couples must take reasonable and proper steps to protect their separate property. The goal is to be clear about which property is to be included in marital property division.
Some couples do this through pre-nuptial agreements. Others make sure that inheritance money or gifts are structured in a transparent way so that all concerned are clear on whether something is marital or separate property.