Can I Keep My House in a Divorce?
When people consider divorce, a common question they have is, Who gets the house in a divorce in Alabama? For most couples, the marital home is the biggest asset acquired during the marriage. Some divorces are tumultuous because both spouses fight to hold on to the marital home.
During asset division, you and your spouse will work to agree on who keeps the marital home and any investment properties after the divorce. If you and your spouse cannot agree, a judge will decide who keeps the house in the divorce.
An Alabama divorce attorney could also help you negotiate who gets what assets, including the martial home, and debts. Our Divorce lawyers have experience with negotiations and can help you obtain the marital assets you seek. Call to speak with us (256) 859-7277 or contact us online for a free consultation.
Dividing assets and assigning marital debt can be challenging in any divorce. Alabama is an equal distribution state, meaning the property gets divided based on what seems most fair to each spouse. Some couples can divide marital property on their own. Others may need the assistance of a mediator or attorney to negotiate who gets each asset and who assumes any debts the couple may have.
Alabama Is an Equitable Distribution State for Divorce Property Division
Regarding dividing assets, Alabama is considered an equitable distribution state. Therefore, the courts distribute marital assets following statutory guidelines. The courts seek to produce a fair but not necessarily equal property division. In other words, the split will not necessarily result in a 50/50 division.
If you believe you should keep the house after divorce, you can explain this to the judge. The judge will then decide based on what they feel is most equitable.
The Steps of a Property Division
What determines who gets the house in a divorce? There are three steps to dividing property—regardless of whether you and your spouse handle property division on your own or if the courts handle it for you.
The three steps include:
- Determining if the home constitutes marital or separate property,
- Agreeing on the value of the marital property, and
- Dividing the property.
Determining if the House Constitutes Marital Property or Separate Property
Assets acquired by the couple during the marriage are usually considered marital property. The judge will decide who gets what property if the divorce goes to court. Even if one spouse technically bought a piece of property, the judge could grant the property to the other party. Couples who create their own property division agreements can divide assets however they want.
The property belongs to a spouse privately if one spouse:
- Owned the property before the marriage,
- Received the property as a gift, or
- Inherited the property.
The spouse who owns the property will get to keep it after the divorce. Separate property will not get divided among the spouses.
Determining who gets what property during a divorce can pose a challenge. Many couples can divide property themselves and choose who gets what assets. However, a judge must decide if the couple cannot determine who gets what property.
A divorce lawyer can help you during the property division process. First, we can negotiate with the other party to allow you to acquire the property you wish. Then, if the decision goes to a judge, an attorney can advocate for you to get the property you desire.
Determining the Value of the Marital Home
Once you determine which assets constitute marital property, the spouses can assign a monetary value to each item. Although, if the spouses cannot decide on a particular item’s worth, the courts will decide the monetary value. Some assets may prove more difficult to calculate, especially the marital home.
The marital home might have appreciated or depreciated during the marriage. Your attorney will likely recommend hiring a realtor or real estate appraiser to help determine the current value of your home. Determining the proper value for each property can be more complex if you own multiple homes or investment properties.
A professional appraiser can help determine the value of the marital home. A comparative market analysis can also be used to value your home. A comparative market analysis is a way to estimate a property’s value by evaluating similar homes that recently sold nearby. The appraisal or analysis will consider factors such as the property’s condition, location, and current market value.
One or both spouses may dispute the value of the marital home. Each spouse can present their own appraisal or analysis to the court. The court will evaluate each spouse’s evidence before making a decision.
Factors Affecting the Value of the Marital Home
It is important to note that other factors can affect the valuation of the marital home, such as any outstanding mortgage or liens on the property. These factors may also be considered when determining the home’s value in an Alabama divorce.
Real estate experts typically look at primary factors, such as:
- Appreciation or depreciation of the property. Housing maintenance and market fluctuations can increase or decrease the value of the marital home.
- Cost of repairs and renovations. If the property requires significant repairs or renovations, these repair costs can impact your home’s value.
- Location of the home. The location of the property can also impact its value. Factors such as the school district, proximity to amenities, and crime rate can all affect the property’s value.
- Tax implications. The tax implications of selling the property can also be a factor in determining its value in a divorce. For example, if selling the property would result in a significant tax liability, this may impact the home’s value.
- Use of the property. If the property has been used for income-generating purposes, such as a rental property or home office, this can affect its value.
If you have questions about how courts and real estate experts determine the monetary value of a home or investment property, please speak with an experienced Alabama divorce lawyer.
Determining a fair monetary value for your home gives you a better chance at reaching an agreement.
Determining How to Divide the Property
The couple can begin property division after assets get assigned a monetary value. There are several ways a couple can decide who gets the house in a divorce in Alabama.
- Selling the property and splitting the money from the sale equally. Couples can put the house on the market and agree to split the proceeds once it sells, paying off any remaining liabilities.
- Splitting multiple properties up, and so that each spouse receives some property. This might be an ideal solution for couples that own a primary residence and a vacation home elsewhere. The homes don’t have to be of similar value. You can offset the difference with other assets or by buying out the additional equity with a refinance. Or, if one asset or property is more important to you than another, you could chose to give up the asset of greater value for one that you want more.
- Keeping the property together. For instance, consider a case where a couple has an investment property that could increase in value—and both parties want to keep it. In amicable divorces, divorced couples can own a piece of property together. In this situation, the spouses would remain co-owners, hold the title together, and make decisions about the home together. Keep in mind that this particular solution is unlikely to be ordered by a court.
- Buying out your spouse. You don’t have to sell the property to get your soon-to-be ex off the title. You can opt to buy them out too either with cash from a refinance or by giving up other valuable marital assets.
A judge will get involved if the couple cannot decide how to divide their assets. Once a judge becomes involved, the couple no longer has the authority to choose who gets what property in their divorce. The judge will look at the individual facts of each case to determine who gets what property.
Letting the court decide how to divide your most precious assets, such as the family home, could be risky. Depending on your circumstances and your relationship with your ex, you should try to reach a resolution, whether through negotiations or mediation.
When dividing assets among divorced couples, the judge will consider:
- How long the marriage lasted;
- The age of each spouse;
- Each spouse’s health;
- The couple’s standard of living when they were married;
- If one spouse contributed to the education or training of the other to increase their earning capacity;
- The monetary value of the property;
- Potential tax consequences;
- Different types of income, such as retirement or disability benefits; and
- If the grounds for divorce were because of the fault of one party.
In a fault-based divorce, the judge could grant the party who did not cause the divorce more property during asset division. This means that if your spouse alleges that you caused the marriage to end and a judge agrees, you could end up with significantly less marital property than your spouse. If this is the case, you don’t want to leave the decision of property distribution up to the judge. You could lose ownership rights to the marital home.
Determining if You Can Afford to Keep the Marital Home
Divorces can be emotionally charged. For example, the pain and anger of a divorce can cloud a couple’s judgment around major decisions such as property division. You may also hold sentimental value to property such as the house or your car. These emotional circumstances are typical during divorces, making practical decision-making challenging.
When fighting for a house, car, and other property during divorce, you should determine if you can afford these assets on your own. In your marriage, you and your spouse may have only been able to afford the house with two incomes. If you win the home in a divorce, you become responsible for mortgage payments and maintenance.
Expenses Associated With Owning a Home
You should consider the expenses accompanying a home if you get awarded the house in your divorce settlement. You don’t want to end up with a home that you cannot afford.
These expenses can include:
- The mortgage payment;
- Property taxes;
- Electric and gas bill;
- Maintenance such as house painting, landscaping, or cleaning gutters;
- Repairs if your air conditioner or other large appliance breaks down; and
- Homeowners insurance.
You must consider these factors before fighting to keep the house in your divorce. If you believe you can afford the home independently, a lawyer can help you fight to keep that asset.
If both you and your spouse are named on the home mortgage, you may be required to refinance your home if you receive it in the divorce. The court will generally not require your ex to remain responsible for your mortgage. If your home is your primary asset, you may also need to to buy your spouse out of their share of the home equity with cash from a refinance.
If your credit is bad, you may struggle to get approved for a new loan. And if you have to buy your ex out of their equity or if interest rates have gone up since you originally got your mortgage, you may find that the mortgage payment is higher than you expected. Your attorney can help you run the numbers and determine whether keeping the house is truly feasible for you.
A Divorce Attorney Can Help You Seek Alimony
If you cannot maintain the lifestyle you had while you were married, you could seek spousal support (alimony). Alimony is an allowance from one spouse to the other for financial support after a divorce.
According to Alabama law, one spouse must pay alimony if the court finds:
- The other party lacks a separate estate, or their current estate does not preserve the status quo during the marriage;
- The other party can supply those means without causing economic hardship; and
- The circumstances of the case make providing alimony equitable.
You may need alimony payments to continue the same standard of living as when you were married. If so, a lawyer can help. Whether you can afford to continue living in the marital home may depend on whether you receive an award of alimony.
How No-Fault and Fault-Based Divorce Affects Property Division
The assets you receive in a divorce can depend heavily on whether you have a no-fault or fault divorce. In a fault-based divorce, a judge will examine the grounds for divorce. They could favor the party that did not cause the divorce during asset division. Alabama Code Section 30-2-1 outlines the grounds for divorce in Alabama. The grounds for divorce may be fault-based or no-fault.
In an Alabama no-fault divorce, neither party holds any blame for the marriage ending. A no-fault divorce could still get contested, however. For example, spouses can still disagree on asset division, child custody, and child support issues.
No-fault grounds for divorce include:
- An irretrievable breakdown of the marriage. This means that any attempts at reconciliation will not prove practical nor in the best interests of the family or spouses.
- Incompatibility of living together. The spouses acknowledge an incompatibility of temperament, and the parties can no longer live together.
In a no-fault divorce, each spouse is on equal footing when it comes to property division.
When one spouse claims the other’s actions were the cause of the marriage’s failure, they seek a fault-based divorce filing. If you can prove your spouse was at-fault for the divorce, it is more likely for the courts to grant you a more favorable settlement.
Fault-based grounds for divorce include:
- A spouse commits adultery such as when a spouse has a sexual relationship with someone other than their lawful spouse.
- The wife becomes pregnant during the marriage without the husband’s knowledge.
- A spouse voluntarily abandons the other.
- A spouse goes to prison for at least two years, with their sentence lasting over seven years.
- A spouse is abusive, including physical abuse, sexual abuse, emotional abuse, or other forms of abuse.
- A mental hospital confines a spouse for at least five years of the marriage.
- A spouse becomes addicted to alcohol or drugs during the marriage, including drugs such as opiates, morphine, cocaine, or other similar drugs.
Proving your spouse was at fault does not automatically mean you will get the house, but the court can take your spouse’s fault into consideration in awarding your assets. It’s important to consult with your lawyer about the likely outcomes of your case.
A Divorce Attorney Can Fight for the Assets You Want, Including the Martial Home
When spouses initiate the divorce process, complex issues arise. One or both spouses may worry about maintaining their current lifestyle. A divorce attorney can help you through every step of a divorce when you and your spouse cannot agree on asset division. An attorney can fight for you to receive the assets you want and need to protect your current lifestyle.
A lawyer can:
- Negotiate with the other party to devise a resolution that works for both sides, and
- Prepare your case to present before a judge if you and your spouse cannot settle negotiations.
An attorney can advocate for you to receive the assets you deserve in a divorce. Hiring a divorce lawyer can provide you with the guidance needed during the negotiation process of asset division. You don’t have to face the complications of asset division alone.
A Lawyer Can Fight to Help You Keep a House or Other Property After Your Divorce
If you want to keep your house, car, and property after a divorce, an attorney can help. Divorce lawyers have handled these negotiations and can help you fight for what you believe you may deserve. Dividing assets is too hard to do on your own. A lawyer can navigate those complexities and seek the most favorable outcome in your divorce.
Many firms offer no-obligation consultations. During a consultation, you can discuss the circumstances of your divorce and review the assets that are important to you. Contact a divorce lawyer today or call us at (256) 859-7277 to get started.
Getting a divorce can be daunting, but we will help you take the next step in building a better future. Move to a brighter future with clarity and confidence.