Retirement benefits earned during a Georgia marriage are marital property the divorce court can divide, while the part earned before the marriage stays separate.
Earned During the Marriage
In Courtney v. Courtney, 256 Ga. 97 (1986), an FBI agent argued that his pension benefits, which would vest after 20 years of service and at age 50, were too speculative to divide; he was 47 with 17 years. The Georgia Supreme Court affirmed the ruling against him: “insofar as they are acquired during the marriage,” unvested retirement benefits are marital property subject to equitable division. Vested benefits are too. Taylor v. Taylor, 283 Ga. 63 (2008).
Earned Before the Marriage
In Hipps v. Hipps, 278 Ga. 49 (2004), the husband retired from the Air Force 14 years before the marriage, so “all of Husband’s contributions to his military retirement account pre-date the marriage,” and the account remained his separate property. Growth on a premarital balance stays separate to the extent the market alone produced it, not either spouse’s efforts. Payson v. Payson, 274 Ga. 231 (2001).
When one account holds both, the court separates them. In Johnson v. Johnson, 358 Ga. App. 638 (2021), the trial court set aside each spouse’s premarital amounts, treated the remaining $584,425.36 in the wife’s IRA and the husband’s 401(k) as marital, and divided it equally. The Court of Appeals affirmed.
Dividing the Marital Share
Equitable does not mean equal. In Fuller v. Fuller, 279 Ga. 805 (2005), the Supreme Court upheld a 75-25 division of the husband’s retirement plan in his favor. Courtney lists what the fact-finder weighs, including the other spouse’s contributions, the years of marriage in which they were made, and reliance on the future benefits.
Our post on what is marital property in Georgia explains the general rule, and our QDRO posts explain how a plan pays the other spouse. IRAs, military retirement, survivor benefits, Social Security and stock options have their own posts.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!