When you get divorced in Alabama, all of your marital property from real estate to retirement accounts must be divided equitably with your spouse–this is not the same as “equally.” This is a time when a lawyer’s advice is crucial to ensure that you keep all of the property you are entitled to keep and that you obtain a fair distribution of assets that must be divided.
If you are facing divorce in the Birmingham area, I offer a low-cost initial consultation to discuss marital property division and review your situation.
What Is Marital Property?
In Alabama, marital property includes all of the assets that you acquired or used for the common benefit of your marriage, regardless of whose name is on the asset or who owned the asset prior to the marriage. Items that you think are yours simply because they were yours prior to the marriage may, in fact, be considered marital property subject to division, upon divorce. There are certain assets owned prior to the marriage that are not considered marital property–as long as you kept this property separate from marital property and did not use the asset for the common benefit of the marriage. What constitutes use for the common benefit of the marriage is often a hotly contested issue. Retirement benefits such as 401(k) accounts and pension plans may or may not be subject to division as marital property, depending on several factors. If you have been married for less than 10 years, Alabama law does not provide for the division of retirement accounts. However, if you have been married for longer than 10 years, your spouse may be awarded up to one-half of the retirement benefits accumulated during the marriage.
What Is Equitable Distribution?
Equitable means fair. Many factors may be considered in what is fair. In Alabama, a domestic relations judge may consider the misconduct of either spouse in determining the percentage of marital property to award as well as the amount of alimony. The judge has wide discretion in what is awarded to either spouse, but generally tries to be fair.
Prenups and Marital Property Division
A prenuptial agreement, if it was drafted and executed properly, will control how marital property is divided. I often draft prenuptial agreements for clients who are getting married for the second time or who have significant assets they want to protect. It is an excellent way to eliminate future problems and to make sure each party to the marriage knows what their rights and responsibilities are, should the marriage end in divorce.