The separate property of each spouse shall remain the separate property of that spouse, except as provided in Chapters 5 and 6 of this title and except as otherwise provided by law.
(Laws 1809, Cobb's 1851 Digest, p. 305; Code 1863, § 1701; Ga. L. 1866, p. 146, § 1; Code 1868, § 1744; Code 1873, § 1754; Code 1882, § 1754; Civil Code 1895, § 2474; Civil Code 1910, § 2993; Code 1933, § 53-502; Ga. L. 1979, p. 466, § 33.)
Cross references.- Spouse's separate property, Ga. Const. 1983, Art. I, Sec. I, Para. XXVII.
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 article, "Are We Witnessing the Erosion of Georgia's Separate Property Distinction?," see 13 Ga. St. B.J. 14 (2007). For note, "Georgia Becomes A Quasi Community Property State," see 17 Ga. St. B.J. 134 (1981). 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
At common law, earnings of wife belonged to her husband. Cotter v. Gazaway, 141 Ga. 534, 81 S.E. 879 (1914).
Real estate of wife prior to married women's statute.
- Under the statutes of this state as they were in force prior to the Act approved December 13, 1866 (Acts 1866, p. 146), all the real estate of the wife in her possession and to which she had title at the time of the marriage vested in and belonged to the husband. Hudgins v. Chupp, 103 Ga. 484, 30 S.E. 301 (1898).
Law constituted women as feme soles. Citizens & S. Nat'l Bank v. Mann, 234 Ga. 884, 218 S.E.2d 593 (1975).
Wife's separate property.
- Law gave wife right to keep, acquire, and control her separate property. Foster v. Withrow, 201 Ga. 260, 39 S.E.2d 466 (1946).
Wife's action for conversion of her property.
- Trial court erred by finding that a wife could not proceed against her former husband on claims relating to his conversion of stock certificates owned solely in her name. Fleming v. Fleming, 246 Ga. App. 69, 539 S.E.2d 563 (2000).
Debts of husband.
- Law did not restrict a woman's assumption of debts of her husband. Citizens & S. Nat'l Bank v. Mann, 234 Ga. 884, 218 S.E.2d 593 (1975).
Bankruptcy exemptions.
- When husband and wife debtors sought to exempt their income tax refunds, pursuant to O.C.G.A. § 44-13-100(a)(6), the procedure set forth in In re Crowson, 431 Bankr. 484, 489 (10th Cir. B.A.P. 2010) was to be followed. Each debtor was treated separately under 11 U.S.C. § 522(m), and Georgia law had no presumption of equal ownership of property between spouses under O.C.G.A. § 19-3-9. In re Evans, 449 Bankr. 827 (Bankr. N.D. Ga. 2010).
Retention of tax refund by Chapter 7 debtors.
- Chapter 7 debtors could not retain total tax refunds because, pursuant to Georgia law, which - pursuant to O.C.G.A. § 19-3-9 - had no presumption of equal ownership of property between spouses, the refund in its entirety was the sole property of the sole income earner at the time of the bankruptcy filing. In re Hraga, 467 Bankr. 527 (Bankr. N.D. Ga. 2011).
Statute's effect on common law property right of wife.
- Statutes of this state do change common law in respect to property rights of wife; with respect to such rights she is as a feme sole. Eddleman v. Eddleman, 183 Ga. 766, 189 S.E. 833 (1937).
Husband and wife are no longer unit, one person in law, with all property vested in husband as the head of the family, and subject to his debts, but they are, in law, so far as property is concerned, two distinct persons, with distinct and separate rights. Sessions v. Parker, 174 Ga. 296, 162 S.E. 790, answer conformed to, 45 Ga. App. 101, 163 S.E. 297 (1932).
Married woman may deal with her property as freely as man may deal with his; she is not forbidden to utilize her estate for her husband's benefit. Johnston v. Susman, 193 Ga. 758, 19 S.E.2d 919 (1942).
Wife may sue and be sued in all matters relating to her sole and separate property. Martin v. Gurley, 201 Ga. 493, 39 S.E.2d 878 (1946).
Wife has right of action for damages to her separate estate resulting from her husband's negligence. This right is necessary in order that a wife may have equal protection of the law respecting her separate estate. Hubbard v. Ruff, 97 Ga. App. 251, 103 S.E.2d 134 (1958).
Right of action for damages to property resulting from negligence is a property right as to which a wife in this state suffers from no restrictions arising from coverture, and she may accordingly maintain an action for damages against her husband thereon. Hubbard v. Ruff, 97 Ga. App. 251, 103 S.E.2d 134 (1958).
Married woman's action for loss of consortium.
- Married woman may maintain action for damages against third person for loss of consortium, even though she may be living at the time with her husband. Tingle v. Maddox, 186 Ga. 757, 198 S.E. 722 (1938).
Recovery by wife (and mother) for homicide of child is property right. Kehely v. Kehely, 200 Ga. 41, 36 S.E.2d 155 (1945).
Husband can maintain bailtrover action against his wife, a husband and wife can make contracts with each other, and the husband and wife can become copartners in a business enterprise. Foster v. Withrow, 201 Ga. 260, 39 S.E.2d 466 (1946); Bradley v. Tenneco Oil Co., 146 Ga. App. 161, 245 S.E.2d 862 (1978).
Husband cannot use his wife's separate money to buy property for himself; if he invests her funds in real estate in his own name, equity will fix a trust upon the land, and having jurisdiction for one purpose, it will do complete justice and give full relief between the parties. Sasser v. Sasser, 73 Ga. 275 (1884).
Failure to allege that wife's separate estate provided portion of purchase price.
- Insofar as petition sought to recover one-half, or some other portion of the real estate here involved or to impress such real estate with a trust, upon the theory that it was purchased in part out of the separate estate of the wife, the petition failed to set out a cause of action because it did not allege that any definite portion of the purchase price was paid by her out of her separate estate. Roach v. Roach, 212 Ga. 40, 90 S.E.2d 423 (1955).
Property brought into marriage by one party is not subject to equitable division. Bailey v. Bailey, 250 Ga. 15, 295 S.E.2d 304 (1982).
Deduction of premarital value proper.
- Trial court did not err in deducting the premarital value from the wife's share of the benefits to which the wife was entitled. Christian v. Christian, 300 Ga. 263, 794 S.E.2d 51 (2016).
Property acquired during marriage by either party by gift, inheritance, bequest, or devise remains separate property of party that acquired it, and is not subject to equitable division. Bailey v. Bailey, 250 Ga. 15, 295 S.E.2d 304 (1982).
Interspousal gifts of property acquired during marriage are subject to claims for equitable division of property. McArthur v. McArthur, 256 Ga. 762, 353 S.E.2d 486 (1987).
Parties' residence constituted marital property for purposes of equitable division, despite the subsequent interspousal transfer for the purpose of shielding the home from a potential judgment creditor, since the parties initially acquired the property as marital property. Sparks v. Sparks, 256 Ga. 788, 353 S.E.2d 508 (1987).
When there is no question that the house initially was acquired as marital property, deeded by husband to wife, the trial court did not err by denying the wife's motion for directed verdict, by charging the jury that gifts, for purposes of determining the parties' separate property, consist of gifts from a nonspouse before or during the marriage, nor by entering judgment on the jury's verdict awarding to the husband a 35 percent interest in the house. McArthur v. McArthur, 256 Ga. 762, 353 S.E.2d 486 (1987).
Former husband was barred from seeking resulting trust in parties' residence, because his misconduct of fraudulently transferring the house to the former wife related directly to the transaction from which he sought relief - the transfer of the house placing title in her, but his misconduct in transferring the residence did not relate directly to his claim for an equitable division of the residence. That claim was based not on the circumstances surrounding the transfer, but on the fact that the property was acquired during the parties' marriage, through their labor and investments, thereby giving each party an equitable interest therein. Sparks v. Sparks, 256 Ga. 788, 353 S.E.2d 508 (1987).
Effect of conveyance of separate property.
- Husband deeding of a home to both his wife and himself, to be held as "tenants in common" with right of survivorship manifested an intent to transform the husband's own separate property into marital property; because both the husband and the wife then owned an undivided one-half interest in the property, the entire home should have been treated as marital property. Lerch v. Lerch, 278 Ga. 885, 608 S.E.2d 223 (2005).
Once separated by judicial determination in a separate maintenance judgment, property becomes part of the separate estate of the party to whom the property is awarded and the property is not thereafter subject to equitable division in a later divorce action. Goodman v. Goodman, 254 Ga. 703, 334 S.E.2d 179 (1985).
Section does not change common-law doctrine of interspousal immunity.
- O.C.G.A. § 19-3-9 does not purport to change common law regarding personal torts committed by one spouse against the other, and the law, with respect to those matters, is still the same as it was under common law, that is, that marriage extinguishes antenuptial rights of action between husband and wife, and after marriage the wife cannot maintain an action against her husband based on tortious injury to her person, though committed prior to coverture. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).
Common-law interspousal immunity doctrine applies to husbands as well as wives. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).
Doctrine of interspousal immunity is not unconstitutional, as a matter of due process or equal protection. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).
Common-law interspousal immunity doctrine bears reasonable relationship to promotion of domestic tranquillity interest sought to be furthered by it. Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).
For discussion of reasons for preserving doctrine of interspousal immunity.
- See Robeson v. International Indem. Co., 248 Ga. 306, 282 S.E.2d 896 (1981).
Unvested retirement benefits are marital property subject to equitable division, insofar as the retirement benefits are acquired during the marriage. Courtney v. Courtney, 256 Ga. 97, 344 S.E.2d 421 (1986).
Applicable to third-party actions.
- Interspousal immunity doctrine does apply in the context of third-party actions. New v. Hubbard, 206 Ga. App. 679, 426 S.E.2d 379 (1992).
Cited in Carlton v. Moultrie Banking Co., 170 Ga. 185, 152 S.E. 215 (1930); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); Sheffield v. Sheffield, 178 Ga. 248, 173 S.E. 121 (1934); Magid v. Beaver, 185 Ga. 669, 196 S.E. 422 (1938); Thompson v. Thompson, 199 Ga. 692, 35 S.E.2d 262 (1945); Bryant v. Bryant, 204 Ga. 747, 51 S.E.2d 797 (1949); Adams v. Pafford, 79 Ga. App. 477, 54 S.E.2d 329 (1949); Taylor v. Vezzani, 109 Ga. App. 167, 135 S.E.2d 522 (1964); Reid v. Peoples Bank, 220 Ga. 368, 138 S.E.2d 876 (1964); Rankin v. Smith, 113 Ga. App. 204, 147 S.E.2d 649 (1966); Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980); Walton Elec. Membership Corp. v. Snyder, 226 Ga. App. 673, 487 S.E.2d 613 (1997); Head v. Head, 234 Ga. App. 469, 507 S.E.2d 214 (1998).
OPINIONS OF THE ATTORNEY GENERALProposed Equal Rights Amendment might affect all state laws which discriminate, even innocuously, between sexes or deny or abridge any equality of rights between sexes for any reason whatsoever. 1970 Op. Att'y Gen. No. 70-165.
RESEARCH REFERENCES
Am. Jur. 2d.
- 41 Am. Jur. 2d, Husband and Wife, § 19 et seq.
C.J.S.- 41 C.J.S., Husband and Wife, § 10 et seq.
ALR.
- Should ownership of property be laid in the husband or wife in an indictment for larceny, 2 A.L.R. 352.
Presumption of ownership of personal property as between husband and wife, 111 A.L.R. 1374.
Right of trustee in bankruptcy, or creditors, of marital community in respect of separate property of one spouse, which has been improved wholly or in part by use of community property, 133 A.L.R. 1097.
Mental incompetency of one spouse as affecting transfer or encumbrance of community property, homestead property, or estate by the entireties, 155 A.L.R. 306.
Interest of spouse in estate by entireties as subject to satisfaction of his or her individual debt, 166 A.L.R. 969; 75 A.L.R.2d 1172.
Spouse's cause of action for negligent personal injury as separate or community property, 35 A.L.R.2d 1199.
Use of community funds in improving, or discharging encumbrance on, separate property as grounding right to reimbursement, lien, or charge, 54 A.L.R.2d 429.
Rights in wedding presents as between spouses, 75 A.L.R.2d 1365.
Joint bank account as subject to attachment, garnishment, or execution by creditor of one of the joint depositors, 11 A.L.R.3d 1465.
Change of domicile as affecting character of property previously acquired as separate or community property, 14 A.L.R.3d 404.
Pensions, and reserve or retired pay, as community property, 94 A.L.R.3d 176.
Divorce and separation: appreciation in value of separate property during marriage without contribution by either spouse as separate or communal property, 24 A.L.R.4th 453.
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 and separation: attorney's contingent fee contracts as marital property subject to distribution, 44 A.L.R.5th 671.
Property rights arising from relationship of couple cohabiting without marriage, 69 A.L.R.5th 219.
Divorce and separation: Determination of whether proceeds from personal injury settlement or recovery constitute marital property, 109 A.L.R.5th 1.
Spouse's professional degree or license as marital property for purposes of alimony, support, or property settlement, 3 A.L.R.6th 447.
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.