Spouses must reach an agreement on how they will divide their marital assets when they get divorced. Some couples begin the divorce process with all of their property distribution and other issues resolved amicably. Still, many people going through these proceedings need guidance from lawyers and go through several rounds of negotiations to work out the finer details.
When spouses cannot agree on who will receive which asset or whether to split an asset equally, a judge will have to make that decision. When you reach out to our firm for support, our attorneys will explain how assets are divided in a divorce and how we can help.
Separate vs. Marital Property
The first step in determining which assets each spouse will keep after the divorce is to identify all the separate assets and all the marital assets. Usually, an individual gets to keep all of their sole and separate assets, while marital assets must be divided.
What Constitutes a Sole and Separate Asset in Alabama
If you accumulated, acquired, or received an asset before getting married and kept that item absolutely separate from any marital assets, it is usually a separate asset. In addition, if you received money or other assets through inheritance—whether before or during the marriage—and kept the asset entirely separate from marital property, the inheritance is generally separate property. Some gifts received during the marriage can also be separate property.
What Constitutes Marital Property in Alabama
All property acquired, received, or accumulated during the marriage is typically marital property. This particularly applies to assets titled jointly between the spouses.
When Separate Property Can Become Marital Property
Assets that were originally separate property could become marital property if they get commingled with marital assets or become jointly titled with the other spouse. For example, if one spouse uses money from a separate, individual bank account accumulated before the marriage to make the down payment on a house the couple titles jointly together, that down payment generally loses its separate property status.
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Factors Alabama Courts Use to Distribute Marital Assets
Alabama divides marital property in a divorce using the “equitable distribution” principle, which the Alabama State Bar explains as the court attempting to “do equity” between the parties. Here are some of the factors that judges use to evaluate property distribution issues:
- The length of the marriage: A brief marriage is likely to receive a less than 50-50 distribution of assets than a marriage that lasted decades. When spouses spend years building a life together, the judge is more likely to see that as a partnership than a six-month marriage.
- Marital misconduct: Abuse and adultery can justify a disproportionate award of assets. Marital misconduct that impacts the marital assets, like buying expensive gifts for a romantic interest outside of the marriage or losing large sums of money on gambling, can also affect asset distribution.
- Childcare: If one spouse is likely to provide the lion’s share of the childcare after a divorce, it might be appropriate to award the family home to that spouse, even if doing so results in an unequal distribution of assets.
- Special needs: Special needs of the children or either parent could make an unequal distribution of assets fair and appropriate.
- Earning ability: The ability of each spouse to earn income after the divorce is a factor in property distribution. For example, a spouse whose career pays $200,000 a year will have a far greater ability to purchase household goods and other necessary items than the other spouse, who might earn considerably less income.
- Monetary contribution: Sometimes, one spouse works long hours during the marriage, and the other spouse refuses to work at all or contribute to the household support, despite having no impediment to working. In that situation, a judge might not let the spouse who refused to work receive half of the assets the couple acquired during the marriage.
- Non-monetary contribution: Take care, however, not to confuse the situation above with a family in which one spouse works outside the home, and the other spouse works hard maintaining the home and household. This includes providing substantial housekeeping services for the betterment of the children and both spouses, and taking on the majority of the childcare services. Non-monetary contributions to the marriage and family are valued.
In Alabama, a fair and equitable distribution does not always mean 50 percent to one spouse and 50 percent to the other. Judges handling Alabama divorces try to do the right thing and create the best possible financial outcome for the family when distributing property.
The Concept of Fairness in a Divorce
One of the essential principles in divorce cases is to do what is in the children’s best interest. For example, it is not in the children’s best interest for one parent to be destitute after the divorce.
Spouses are allowed to resolve their property distribution issues however they choose, within reason. However, the judge will have to approve the Marital Settlement Agreement. The judge will use the factors discussed above to determine if the Marital Settlement Agreement is fair and appropriate or to enter an order that distributes the assets when the parties cannot reach an agreement.
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Our divorce attorneys at Charlotte Christian Law can help you navigate property distribution issues and all of the stages of your divorce. Call us today to find out how we can help you.