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Alabama Property Division FAQs

This is about property division in divorce in Alabama, including the general rule for Alabama property division, what effect the length of marriage and conduct of the parties has on property division after divorce in Alabama, how separate property works in Alabama, and treatment of the marital home and retirement plans in divorce in Alabama.

What's the general rule of property division (equitable distribution, community property, or legal title)?

Alabama is an equitable distribution state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. There is no fixed standard to divide property, each case will be decided on its facts, and the trial courtís discretion will not be disturbed on appeal without a showing of clear abuse.

The division of property must be graduated according to the particular facts and circumstances of each case. The court may divide jointly owned property according to the equities of the case. It may award property to one spouse that was owned during the marriage by the other spouse, it may award property to one spouse even that was owned during the marriage by the other spouseís corporation, and it may order property sold to bring about an equitable division of property.

What effect does the conduct of the parties have on property division?

Misconduct matters. The courtís discretion extends to a ruling awarding the wife a little less than half of the husbandís estate, considering evidence that the husband had engaged in misconduct. It also extends to a decision to give the wife virtually all the marital estate, in view of the short length of the marriage (3 ½ years), evidence that the wife had contributed the property, and evidence that the husband had abused her. It does not extend, however, to an award of about 30 percent of the marital estate to the wife, given her status as a homemaker during most of a lengthy marriage, given that the marital residence was built on land she inherited, and given that significant funds invested in the marital residence came from the sale of other land she had inherited.

Misconduct probably matters less than most people expect it does. Remember that the facts that seem so shocking to you may not be shocking at all to the judge, because he or she has already heard about this sort of thing several times this week.

What effect does the length of the marriage have on property division?

Generally, property division involving a short-term marriage is relatively straightforward. When few or no joint assets have been accumulated, the tendency is to "unwind" the marriage. This means giving back to the husband and wife what each of them brought to the marriage, both assets and debts, and dividing up in some fair way the assets and debts the parties Giving back to, that is, to return the parties to the financial position in which they arrived at the marriage. The more the parties have "co-mingled" their assets, however, the more difficult this "unwinding" may become.

In distributing property after a longer term marriage, the judge's tendency will typically be to begin with something like a 50/50 division of the marital estate. They'll depart from that 50/50 standard, though, sometimes fairly dramatically, depending on their judgment about what is equitable under the circumstances.

Is there such a thing as separate property? What does it take?

Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.

So where a wife exercises exclusive dominion and control over property and excludes the husband from any role with it, and where the husband derived no benefit from the property by virtue of the marital relationship, the property is considered the wifeís separate estate. However, where the parties regularly use property acquired before marriage for the common benefit of the parties, it is available for consideration in dividing property.

Any special rules for the marital home?

It is in dealing with the marital home that courts often fall back on the principle that they are to devise an equitable distribution, not necessary an equal one. Courts can get creative in dealing with the family home. For example, the wife may be awarded the "use and possession" of the home for a period of time, or for her life. Or she may be given the right to stay in the home until she remarries or until all the children reached the age of majority, whichever happens first.

How do retirement plans get divided?

  • The spouse owning the benefits must have a vested interest in them or be receiving them on the date the divorce action is filed.
  • The parties must have been married for 10 years, during which the retirement benefit was being accumulated.
  • Any retirement benefits accumulated before the marriage, including any earnings produced by such benefits, must be excluded.
  • The total benefit extended to the non-covered spouse may not exceed half the benefit to be considered.
  • The payout to the non-covered spouse may not begin until the covered spouse begins receiving benefits or reaches age 65, whichever occurs first.
These restrictions are binding only on judges. The parties can agree otherwise, for example to begin payout to the non-covered spouse independently of the retirement of the covered spouse.

Other Issues in Alabama:

Stop the Divorce! | How much child support?
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