What does wife get in divorce Alabama?

MARITAL PROPERTY AGREEMENTS

A marital property agreement can be important in terms of providing clarity about ownership of certain assets, as well as avoiding expensive disputes in the event of divorce.

The experienced legal team at Alabama Divorce & Family Lawyers, LLC, can help you negotiate a fair marital property agreement. This may be done in the form of a prenuptial agreement, a postnuptial agreement, a common law marriage agreement or in the midst of divorce in a marriage settlement agreement.

It’s important to understand that absent an agreement drafted before or during the union stating otherwise, all marital property may be divided under a plan of equitable distribution.

Marital property may include actual assets, as well as the appreciation of real property, business profits or investments that occurred during the marriage.

What is Equitable Distribution?

Alabama is considered an equitable distribution state, as opposed to a community property state. What this means is property and debts shared by divorcing parties are divvied up in a way that is most fair and equitable.

However, equitable does not mean equal. This is a common misconception. Rarely is the split 50-50, and the judge will take into account a host of factors when deciding how to divide the property.

The law does not spell out a fixed standard on how property has to be divided in these cases. Rather, the trial court is given a broad amount of discretion in determining equitable division. It’s important to have a knowledgeable divorce lawyer on your side throughout this process because whatever the judge decides is usually not disturbed on appeal unless the party can prove clear abuse of judicial discretion or an error of law.

Some factors the judge will weigh in deciding how to divide assets and debts:

• Length of the marriage
• Age and health of each spouse
• Each spouse’s contribution to the education or increased earning power of the other
• Standard of living during the marriage
• Whether one parent provided services as a wage earner, parent or homemaker
• Type, course and value of property
• Any relevant tax consequences of distributing the property
• Individual needs of each spouse, including the present and future earning potential
• Alternate sources of income (i.e, retirement benefits, disability benefits and/or health insurance)
• Living arrangements for any children involved
• Fault of either individual if that contributed to the breakdown of the marriage (if the marriage is filed on fault-based grounds)

It’s important to note that just because property was owned by one spouse prior to marriage, does not necessarily mean he or she will walk away with it. The judge may assign a greater portion of value for that house, but it will probably still be deemed marital property, the value of which is subject to distribution.

What is Marital Property?

There are basically two kinds of property in an Alabama divorce: Separate and marital.

In divorce, marital property is subject to equitable distribution, while separate property is not.

Property that may be considered in a divorce could include:

• Houses
• Vehicles
• Jewelry
• Clothing
• Bank Accounts
• Pensions
• Retirement Accounts
• Investments
• Cash Value of Life Insurance Policies
• Family-Owned Businesses
• Tax Credits and Tax Refunds
• Trademarks
• Gifts From One Spouse to Another

All property acquired by a couple during their marriage will be considered marital property. Meanwhile, property that was acquired before marriage or through inheritance is generally considered separate property.

However, separate property can become marital property, and this is sometimes where it can get tricky. One example we might offer is a wife who inherits a house from her family, but the husband invests his time and/or money paying the mortgage, covering repairs or making improvements. In that case, the court could consider that property marital property.

Similarly, if the property was used for the benefit of the marriage, it could be deemed marital property, even if it was separate at the outset. This is sometimes referred to as “commingling” property.

If a couple files for legal separation prior to divorce (which is not a requirement), any asset acquirement or appreciation of those assets after that point (assuming marital property was not used in the process) may be deemed separate property.

Whatever agreements are drafted prior to divorce regarding property distribution will serve as clarification and, absent any major issues with the contract, will be upheld.

Find out how marital property (and debt) is divided in an Alabama divorce case.

One of the challenges divorcing couples must face is dividing their marital property and assigning marital debts. Alabama law requires a division of marital property to be equitable, meaning that it must be fair. Some couples are able to agree on their own about how to divide property, while others use the help of attorneys or a mediator to negotiate a settlement. Couples who don't manage to resolve property issues will end up going to court to ask for a decision from an arbitrator or a judge.

Whether you handle your own property division or a court handles it for you, there are three crucial steps to the process:

• determine whether the property (or debt) is marital or separate
• agree on a value for marital property, and
• decide how to divide the property.

Marital Property and Separate Property

Courts in Alabama treat most property a couple acquires during marriage as marital property. The law allows a judge to divide such property in any manner that the judge deems fair, regardless of which spouse actually owns the property. If a spouse owns property before marriage, or acquires it by gift or inheritance, a court will usually consider this to be the spouse's separate property and will not divide it at divorce. The court might make an exception, however, if such property has been used to benefit both spouses during the marriage. For example, a court could consider the couple's home to be marital property (in whole or in part) even if it belonged solely to one spouse before the marriage. Courts generally do this only in long marriages or in unusual situations—and it does not necessarily mean that the court will divide the asset equally between the spouses.

In a marriage that lasted 10 or more years, a judge may award one spouse a portion of the other spouse's retirement accounts. Regardless of the length of the marriage, the court cannot include benefits a spouse earned before the marriage in the division. In addition, the covered spouse must be receiving benefits, or at least have a vested interest in the benefits, at the time the divorce is filed. The non-covered spouse cannot receive more than half of the benefits eligible for division and cannot begin receiving benefits until the covered spouse either begins receiving benefits or reaches the age of 65.

A couple making their own agreement can divide assets in whatever way they see fit. Some couples have a premarital agreement defining property as separate or marital; if there is a prenup, it can make dividing property much easier.

Marital and separate property can become mixed together—sometimes called "commingling." A premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits to it; a house owned by one spouse alone can become marital property if both spouses pay the mortgage and other expenses. If the spouses aren't able to decide what belongs to whom, the judge will have to decide whether any or all of the commingled property was a "gift" to the marriage or whether the original owner should be reimbursed in whole or in part.

Assigning Value

The spouses—or the court if the spouses can't agree – generally assign a monetary value to each item of property. Appraisals can help a couple determine the value of real property as well as items like antiques or artwork. Retirement assets can be very difficult to evaluate and may require the assistance of an actuary, C.P.A., or other financial professional.

Dividing the Property

Spouses can divide assets by assigning certain items to each spouse, or by selling property and dividing the proceeds. They can also agree to hold property together—this isn't a very attractive option for many people, because it requires a continued relationship, but some couples agree to keep the family home until children are out of school. Others may keep investment property in hopes it will increase in value.

The couple must also assign all debt accrued during the marriage, including mortgages, car loans, and credit card debts, to one spouse or the other.

If the couple can't agree on how to divide property, a judge will decide. There is no fixed formula for determining what is equitable; every case depends on the individual facts and circumstances. Examples of factors that an Alabama court will consider in dividing property are:

• the length of the marriage
• the age and health of each spouse
• the standard of living during the marriage
• one spouse's contribution to the education, training, or increased earning power of the other
• services as a parent, wage earner, or homemaker
• the source, type, and value of the property
• tax consequences of the distribution
• the needs of each spouse, considering both present circumstances and future opportunities to gain income and assets
• other sources of income such as individual retirement, insurance, or disability benefits
• living arrangements for the parties children, and
• any fault of either party that contributed to the breakup of the marriage.

A judge will look at different factors in each case. In general, the longer a couple has been married, the closer to equal a property division is likely to be. In a short marriage, the court may not consider the standard of living during the marriage to be very important and would be more likely to try to put the spouses more or less back into the circumstances they were in before the marriage. Where one spouse owned a home separately prior to the marriage, a judge may award the original owner a higher percentage of the value even if the house is considered marital property. And a judge who believes that one spouse was primarily responsible for the breakup of the marriage may award a higher percentage of property to the other spouse.

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