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Selling or Gifting Assets During A Divorce

When the decision as to whether to get a divorce is looming many spouses will also consider what assets they will have to split with their soon to be ex. As you can imagine, there is a great amount of motivation on the part of potential divorce clients to keep as much of their assets as they can. The question of whether you can legally sell assets depends on (1) the type of asset and (2) the county the divorce action is to be filled in.

Property owned by either spouse is going to fall into one of two categories: marital property or separate property. Marital property is all property acquired during the marriage. Even if the asset is in the form of savings from a salary or an individual retirement account, it is considered the property of both parties if earned during the marriage. Separate property, by contrast, is property acquired by each party prior to the marriage. Although the line between marital property and separate property is clear, commingling of assets may lead to a court determination that separate property should be treated as marital property. Regardless, it is recommended to seek advice of counsel prior to making this determination.

Once the property is determined to be either marital or separate the County in which the divorce is filed will govern how each party should govern themselves while the divorce action is pending. Most superior court judicial circuits have issued standing orders that trigger once a civil action is filed. In divorce cases superior courts throughout the state require all parties to abide by a list of conditions once an action is initiated. For instance, two primary conditions typically included are (1) a prohibition against harassing the other party and (2) a prohibition against either party selling or divesting marital property. The primary purpose of this second provision is to prevent foul play and give the Court every opportunity to decide one of the most important issues in the divorce, the division of assets.

Ultimately, it is important to have an experienced divorce and family law attorney review your case. The Faucette Law Firm represents clients in all areas of family law including: contested and uncontested divorces, child custody, child support, alimony and modifications. We will review your case, provide sound legal advice and ensure that you understand all of your legal options. Our office serves Atlanta, Fulton, Cobb, Douglas, DeKalb, Henry, Clayton, Gwinnett and Fayette. Contact our office today for a consultation. (770) 485-6620.

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