2021 Georgia Code
Title 19 - Domestic Relations
Chapter 5 - Divorce
§ 19-5-13. Disposition of Property in Accordance With Verdict
The verdict of the jury disposing of the property in a divorce case shall be carried into effect by the court by entering such judgment or decree or taking such other steps as are usual in the exercise of the court's equitable powers to execute effectually and fully the jury's verdict.
(Orig. Code 1863, § 1680; Code 1868, § 1723; Code 1873, § 1724; Code 1882, § 1724; Civil Code 1895, § 2442; Civil Code 1910, § 2961; Code 1933, § 30-118.)Cross references.
- Identification of spouses' separate property, Ga. Const. 1983, Art. I, Sec. I, Para. XXVII and § 19-3-9.Law reviews.
- For article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For survey article on wills, trusts, and administration of estates, see 34 Mercer L. Rev. 323 (1982). For annual survey of domestic relations law, see 35 Mercer L. Rev. 127 (1983). For article, "Tax Aspects of Divorce and Separation and the Innocent Spouse Rules," see 3 Ga. St. U.L. Rev. 201 (1987). For article, "The Civil Jurisdiction of State and Magistrate Courts," see 24 Ga. St. B.J. 29 (1987). For note, "Georgia Becomes A Quasi Community Property State," see 17 Ga. St. B.J. 134 (1981). For note, "The Significance of Stokes v. Stokes: An Examination of Property Rights Upon Divorce in Georgia," see 16 Ga. L. Rev. 695 (1982). For comment, "The Georgia Supreme Court's Creation of an Equitable Interest in Marital Property - Yours? Mine? Ours!," see 34 Mercer L. Rev. 449 (1982).JUDICIAL DECISIONS
Settlement of property rights can be made in divorce action. Hendrix v. Hendrix, 224 Ga. 662, 163 S.E.2d 917 (1968); Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).
Court has ancillary jurisdiction to determine equitable interest of either spouse in real or personal property owned, either in whole or in part, by the other spouse. Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).Jurisdiction of marriage and of property within territory.
- When the husband is a nonresident, served by publication, the court, having jurisdiction of the res of the marriage relation, may render a valid decree of divorce; and under the court's additional powers given by the statutes, having incidental equity jurisdiction over the res of the property within its territory, it may render a valid judgment or decree in rem with respect to such property when necessary to enforce the wife's claim to permanent alimony. Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937).
Court or jury has authority to award property of one spouse to the other spouse based solely on an equitable division of property. Bedford v. Bedford, 246 Ga. 780, 273 S.E.2d 167 (1980).
Trier hearing an alimony case has the authority to award to one spouse real property titled in the name of the other spouse since the basis of such award is neither alimony, partitioning, trust, nor fraud, but is equitable division of property. Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980).Improper in personam judgment award.
- When wife's failure to have received $25,000 was not the result of the husband's willful disobedience, but of the fiduciary's apparent misappropriation of the fund, the trial court erred in subsequently ordering that the husband was required to pay this sum, as this had the erroneous effect of amending the judgment to make it an in personam judgment against the husband, in the nature of an award of lump sum alimony, which was totally inconsistent with the jury's in rem award to wife of the $25,000, as a component of the equitable property division. Wagan v. Wagan, 263 Ga. 376, 434 S.E.2d 475 (1993).
Because a jury expressly declined to make an equitable division of property between the parties, and the husband did not pray for alimony, the parties' ownership interests in any marital property not addressed by the jury in its specific award of alimony to the wife remained as they were before the decree was entered. Mitchell v. Mitchell, 263 Ga. 182, 430 S.E.2d 350 (1993).Medical license is not property.
- Husband's medical school education and license may not be considered "marital property," subject to equitable division. The value of these assets is too speculative to calculate, being simply the possibility of enhanced earnings they provide. That potential may never be realized for any number of reasons. Lowery v. Lowery, 262 Ga. 20, 413 S.E.2d 731 (1992).Value of stock in closely-held corporation.
- In dividing the marital property of the parties to a divorce action, the court was not bound by the value set forth in a buy-sell provision of a stockholder agreement in placing a value on the stock of a closely-held corporation for purposes of marital division, as the buy-sell price did not reflect the true market value. Barton v. Barton, 281 Ga. 565, 639 S.E.2d 481 (2007).
Decree should carry verdict into effect, and not destroy the verdict. Gilbert v. Gilbert, 151 Ga. 520, 107 S.E. 490 (1921); Wise v. Wise, 156 Ga. 459, 119 S.E. 410 (1923).Changes to agreement.
- Final version of the settlement agreement adopted by the trial court over the objections of the defendant included several provisions either not included in the original or different than those initially agreed upon; those changes and additions to the parties agreement rendered the trial court's adoption of the subsequently drafted final version error. DeGarmo v. DeGarmo, 269 Ga. 480, 499 S.E.2d 317 (1998).Alteration of divorce decree in contempt proceeding.
- Trial court erred in finding that a husband was not in contempt of a divorce decree because of impossibility, illegality, and a reasonable desire for clarification and in substantially altering the divorce decree as the husband forfeited the husband's automatically-granted appeal of the decree by the husband's failure to pay costs; the husband never moved to set aside the decree and the contempt proceeding was not the vehicle to alter the divorce decree. Smith v. Smith, 281 Ga. 204, 636 S.E.2d 519 (2006).
Trial court erred in holding a husband in contempt for refusing to sign an agreed domestic relations order because the trial court erroneously modified a divorce decree; in supplying the missing percentage allocation of a husband's military retirement benefits, the trial court did more than construe or clarify imprecise language in the agreement because the trial court eschewed the plain language of the agreement allocating to the wife only such amounts as the Navy would "require" and substituted for that provision a fifty percent allocation. Morgan v. Morgan, 288 Ga. 417, 704 S.E.2d 764 (2011).Spousal responsibility for paying note.
- Divorce decree settling spousal responsibility for paying note is not binding upon noteholder. McDonald v. McDonald, 232 Ga. 190, 205 S.E.2d 850 (1974).Trover and conversion relating to property awarded in divorce decree.
- O.C.G.A. § 19-5-13 does not divest the state courts of jurisdiction over trover or conversion actions in which the alleged trover or conversion results from the defendant's retention of property awarded to the plaintiff in a final divorce decree. Dunlap v. Pope, 177 Ga. App. 539, 339 S.E.2d 662 (1986).If state court retains jurisdiction over property, federal court cannot appoint receiver.
- Since a court hearing a suit for divorce and division of property asserts quasi in rem jurisdiction over the marital property, where the court's order providing for the sale of the property and division of the proceeds had not yet been complied with, that court still had and continued to exercise quasi in rem jurisdiction over the property, and the federal district court therefore had no power to appoint a receiver to effectuate the sale of the property as required by the divorce decree. Cavalino v. Cavalino, 601 F. Supp. 74 (N.D. Ga. 1984).Equitable division when spouse conveyed property to parent prior to divorce action.
- Property which a spouse conveyed by deed to the spouse's parent before the other spouse filed for a divorce was not subject to equitable division in the divorce action brought by the other spouse because the other spouse chose to abandon the avenue for recovery that the other spouse initiated to show that the property was still subject to equitable division. Armour v. Holcombe, 288 Ga. 50, 701 S.E.2d 169 (2010).Generic final decree upheld.
- Given all of the relevant facts and circumstances regarding the parties' marriage, the trial court did not abuse the court's discretion in finding that the proper disposition was to enter a generic final judgment severing the marital relationship; hence, the trial court properly chose to allow the parties' ownership interests in any marital property to remain as they were before the decree was entered. Stanley v. Stanley, 281 Ga. 672, 642 S.E.2d 94 (2007).Valuation of property not required.
- Considering the lack of any evidence of the value of the maintenance work performed by the husband, the testimony of the wife that he was paid for this work, the fact that the husband used a portion of the property rent-free as a commercial recording studio, and the fact that the property paid for the mortgage through the property's own rents, the trial court had evidentiary support for the court's finding that any increased value in the property attributable to the husband's contributions and the expenditure of marital funds was nominal, and therefore a calculation of the current market value of the property was not needed. As there was ample evidence supporting the court's conclusion, the trial court did not abuse the court's broad discretion to divide marital property equitably. Pina v. Pina, 290 Ga. 878, 725 S.E.2d 301 (2012).Equitable division of marital property upheld.
- Trial court did not err in denying a husband's motion for new trial as the wife presented sufficient evidence from which an equitable division of the value of two properties at issue could have been determined at the time the property's value began to include an element of marital property. Maddox v. Maddox, 278 Ga. 606, 604 S.E.2d 784 (2004).
Former husband failed to carry the burden of proving error in the trial court's division of property in a divorce action; although each spouse is entitled to an allocation of the marital property based upon his or her respective equitable interest therein, an award is not erroneous simply because one party receives a seemingly greater share of the marital property. Harmon v. Harmon, 280 Ga. 118, 622 S.E.2d 336 (2005).
In a divorce proceeding, a spouse's claim on appeal that the evidence at trial was strongly against the jury's verdict failed because the evidence was sufficient to authorize the verdict; the jury was presented with evidence of the parties' assets and liabilities and of their disparate earning power. Moxley v. Moxley, 281 Ga. 326, 638 S.E.2d 284 (2006).
On appeal from an order equitably distributing the parties' marital property, inasmuch as the issues on appeal depended upon the factual determinations made by the trial court as fact-finder, and neither party asked the trial court to make factual findings, the Supreme Court of Georgia was unable to conclude that the trial court's equitable distribution of marital property was improper as a matter of law or as a matter of fact. Crowder v. Crowder, 281 Ga. 656, 642 S.E.2d 97 (2007).
Because conflicting evidence was presented concerning the values of the parties' assets as well as the premarital and marital contributions of each spouse, the trial court, sitting as the trier of fact, was required to determine whether and to what extent a particular asset was marital or non-marital, exercise the court's discretion, and then divide the marital property equitably; hence, inasmuch as the issues on appeal depended upon the factual determinations made by the trial court as fact finder, and neither party asked the trial court to make factual findings, the equitable distribution of marital property was not improper as a matter of law or fact. Mathis v. Mathis, 281 Ga. 865, 642 S.E.2d 832 (2007).Pension benefits.
- Trial court did not abuse court's discretion in failing to classify the employer contributions to the parties' pension accounts as marital property, and then equitably divide the parties' entire pension benefits, because inasmuch as the issues on appeal depended upon the factual determinations made by the trial court, and neither party requested that the court make factual findings, the Supreme Court of Georgia had no choice but to uphold the trial court's decision. Further, although the husband's pension was marital property, the trial court was at least authorized to find, and might have indeed found, that in light of the wife's own vested retirement benefits, the absence of certain details therein, the wife's earnings potential, and other factors, an equitable distribution could best be achieved by actually dividing only the parties' contributions as employees to their pensions. Taylor v. Taylor, 283 Ga. 63, 656 S.E.2d 828 (2008).
On appeal from an order dividing the parties' marital property, no error resulted from the trial court's order allowing one spouse to retain that spouse's separate property, as the other spouse executed a quitclaim deed to the property, and the record showed that the other spouse contributed significantly to the amount of debt secured by the property, ultimately diminishing the property's worth; moreover, given the overall distribution of assets between the parties and the detailed findings regarding the assets, no abuse resulted from allowing the one spouse to retain a retirement account. Wood v. Wood, 283 Ga. 8, 655 S.E.2d 611 (2008).
Award of certain personal property to a husband in the parties' divorce action was not an abuse of discretion because the wife failed to show that the trial court treated the wife inequitably in the court's decision regarding what constituted a fair division of the marital property between the parties; an equitable division did not necessarily require an equal division. Rumley-Miawama v. Miawama, 284 Ga. 811, 671 S.E.2d 827 (2009).
In a divorce action, a trial court did not abuse the court's discretion in declining to apply the doctrine of judicial estoppel to defeat the wife's claim to any share of her retirement accounts because the husband failed to show that the wife's retirement accounts were not excludable or exempt from the bankruptcy estate under 11 U.S.C. § 522(d)(12). Klardie v. Klardie, 287 Ga. 499, 697 S.E.2d 207 (2010).
At least some evidence supported the jury's determination that the husband's Individual Retirement Account (IRA) was the husband's separate property because as the final arbiter of questions of fact and witness credibility, the jury was free to reject portions of the husband's testimony and conclude from the remaining evidence that the particular IRA in the husband's name could in fact have remained separate property. Curran v. Scharpf, 290 Ga. 780, 726 S.E.2d 407 (2012).Final decree upheld.
- With respect to a final divorce decree that merely included a provision that one spouse would retain title to eight parcels of real property that had been held exclusively in that spouse's name, because no transcript of the evidence admitted at trial was presented, the court had to presume that the evidence supported the trial court's award of none of the parcels to the other spouse. Dasher v. Dasher, 283 Ga. 436, 658 S.E.2d 571 (2008).
Cited in Kirchman v. Kirchman, 212 Ga. 488, 93 S.E.2d 685 (1956); Davis v. Davis, 216 Ga. 305, 116 S.E.2d 219 (1960); Goodwill v. Goodwill, 221 Ga. 757, 147 S.E.2d 313 (1966); Cotts v. Cotts, 245 Ga. 138, 263 S.E.2d 163 (1980); Holler v. Holler, 257 Ga. 27, 354 S.E.2d 140 (1987); Nix v. Nix, 185 Bankr. 929 (Bankr. N.D. Ga. 1994).RESEARCH REFERENCES
"Increased Earning Power" of a Professional Degree or License as an Asset to be Equitably Distributed in Divorce Proceedings, 60 Am. Jur. Trials 391.C.J.S.
- 27C C.J.S., Divorce, §§ 896 et seq., 992 et seq.ALR.
- Divorce as affecting estate by entireties, 52 A.L.R. 890; 59 A.L.R. 718.
Divorce decree as res judicata in respect of community property, 85 A.L.R. 339.
Effect of death of party to divorce suit before final decree, 104 A.L.R. 654; 158 A.L.R. 1205.
Propriety and effect of provision in decree in divorce suit in respect of policy of insurance on life of husband, 145 A.L.R. 522.
Divorce of insured and beneficiary as affecting the latter's right in life insurance, 175 A.L.R. 1220.
Divorce decree purporting to award life insurance to husband as terminating wife-beneficiary's rights notwithstanding failure to formally change beneficiary, 70 A.L.R.3d 348.
Property settlement agreement as affecting divorced spouse's right to recover as named beneficiary under former spouse's life insurance policy, 31 A.L.R.4th 59.
Proper date for valuation of property being distributed pursuant to divorce, 34 A.L.R.4th 63.
Spouse's dissipation of marital assets prior to divorce as factor in divorce court's determination of property division, 41 A.L.R.4th 416.
Divorce: equitable distribution doctrine, 41 A.L.R.4th 481.
Divorce and separation: treatment of stock options for purposes of dividing marital property, 46 A.L.R.4th 640.
Valuation of stock options for purposes of divorce court's property distribution, 46 A.L.R.4th 689.
Divorce: excessiveness or adequacy of trial court's property award - modern cases, 56 A.L.R.4th 12.
Divorce: propriety of property distribution leaving both parties with substantial ownership interest in same business, 56 A.L.R.4th 862.
Divorce property distribution: real estate or trust property in which interest vested before marriage and was realized during marriage, 60 A.L.R.4th 217.
Divorce property distribution: treatment and method of valuation of future interest in real estate or trust property not realized during marriage, 62 A.L.R.4th 107.
Divorce: propriety of using contempt proceeding to enforce property settlement award or order, 72 A.L.R.4th 298.
Divorce and separation: goodwill in medical or dental practice as property subject to distribution on dissolution of marriage, 76 A.L.R.4th 1025.
Valuation of goodwill in accounting practice for purposes of divorce court's property distribution, 77 A.L.R.4th 609.
Divorce and separation: goodwill in accounting practice as property subject to distribution on dissolution of marriage, 77 A.L.R.4th 645.
Valuation of goodwill in law practice for purposes of divorce court's property distribution, 77 A.L.R.4th 683.
Valuation of goodwill in medical or dental practice for purposes of divorce court's property distribution, 78 A.L.R.4th 853.
Accrued vacation, holiday time, and sick leave as marital or separate property, 78 A.L.R.4th 1107.
Divorce and separation: goodwill in law practice as property subject to distribution on dissolution of marriage, 79 A.L.R.4th 171.
Divorce and separation: consideration of tax consequences in distribution of marital property, 9 A.L.R.5th 568.
Divorce and separation: attorney's contingent fee contracts as marital property subject to distribution, 44 A.L.R.5th 671.
Copyright, patent, or other intellectual property as marital property for purposes of alimony, support, or divorce settlement, 80 A.L.R.5th 487.
Divorce decree or settlement agreement as affecting divorced spouse's right to recover as named beneficiary on former spouse's individual retirement account, 99 A.L.R.5th 637.
Division of lottery proceeds in divorce proceedings, 124 A.L.R.5th 537.
Inherited property as marital or separate property in divorce action, 38 A.L.R.6th 313.
Divorce and separation: appreciation in value of separate property during marriage with contribution by either spouse as separate or community property (doctrine of "active appreciation"), 39 A.L.R.6th 205.
Social Security Spousal Benefits in Equitable Property Division in Divorce Proceedings, 44 A.L.R.7th Art. 1.