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I’ve Only Been Married for a Year, Can My Spouse Get Half of My Retirement?

Whether couples have been married for 6 months or 60 years a common question upon divorce is: “Can my spouse get half of my retirement in the divorce?” However, in matters where the divorce concerns a short term marriage, the spouse who owns a retirement account will generally be very concerned over the possibility that his or her soon to be ex-spouse, whom they may have been married to for less than a year, will walk away with half of the retirement fund they spent years accumulating.

Fortunately for anyone in a situation similar to the one outlined above, the answer is no. Georgia is an equitable distribution state, meaning that during divorce marital property is divided equitably between the spouses. See O.C.G.A. § 19-5-13; Fuller v. Fuller, 621 S.E.2d 419 (2005). Only marital property, or property acquired during the court of the marriage is subject to equitable division upon divorce. Moore v. Moore, 249 Ga. 27 (1982).

Thus, any income earned or property acquired by either spouse during the marriage is generally considered marital property. Any separate or non-marital property acquired by one spouse prior to the marriage is not subject to equitable division. With this being said, if you acquired the majority of your retirement fund prior to your marriage, and your marriage was of short duration, according to Georgia law, your spouse is likely not entitled to half of your retirement fund, absent some extenuating circumstance. Your spouse will be limited to making a claim against any portion of your retirement fund accumulated during the marriage.

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