Alabama Property Division FAQs
This is about
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
home and retirement plans in divorce
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.
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
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.
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.
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
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.
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.
do retirement plans get divided?
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
- 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.
Other Issues in Alabama: