familylaw

PROPERTY DIVISION IN DIVORCE

EXPERIENCED BIRMINGHAM DIVORCE ATTORNEY HELPS YOU OBTAIN A FAIR PROPERTY SETTLEMENT

Although many marriages that end in divorce do not have children involved, it is a rare case in which couples get divorced and they do not have any assets or marital debts.  Pursuant to Alabama Divorce Law, Alabama is an “equitable distribution” state when it comes to the division of marital property and division of marital debt.  Many people may mistakenly assume that “equitable” means equal but this is not the case in an Alabama divorce. Moreover, there is no fixed standard or mathematical formula for dividing marital property. Under certain rare circumstances, a party being awarded all of the marital assets can be considered an “equitable distribution.” For this reason, it is vital that a person hire an experienced Birmingham Divorce Attorney and property division lawyer. If you need to hire an Alabama Divorce Lawyer, contact Harwell Law Firm LLC at (205) 980-1445 or by completing the Contact Us intake form.

Factors to be Considered by the Judge for Property Division in an Alabama Divorce

Very few people fully appreciate the power and discretion a Judge possesses when they submit to the jurisdiction of the Court to obtain a divorce.  The trial judge has  the discretion to make an “equitable distribution” of the marital property and as long as there is not a palpable abuse of this discretion, an appellate court will not overrule a decision of the trial judge. However, the divorce trial judge, in exercising its discretion and following general rules established by prior case law,  should also consider the following factors:

  • The source of the common property of the parties
  • The age of the parties
  • The health of the parties
  • The parties future prospects of income and station in life
  • The length of the marriage
  • The conduct of the parties and the cause of the divorce
  • Is one or both parties at “fault” for the divorce
  • Does the case involve minor children 
  • The contribution by the parties in acquiring and/or maintaining assets

When the divorce judge applies these factors, the only rule which must be kept in mind is that any division made by divorce judge does not have to be equal so long as it is equitable.

Property Settlement and Property Awards are not modifiable by the Court

In contrast to child custody, child support and periodic alimony (spousal support) settlement agreements and awards by the trial judge, property settlements and property divisions are generally not modifiable by the Court and are deemed final thirty (30) days from the entry of the Final Judgment of Divorce.  For this reason, it is important that you hire an experienced Alabama Divorce Attorney to assist you in drafting an agreement or in presenting your case at trial.

Alimony in Gross (Property Settlements) vs. Periodic Alimony

In addition to periodic alimony, there exists a separate form of alimony called alimony in gross which can lead to problems if this term is used in a divorce settlement agreement or in a Final Judgment of Divorce. Alimony in gross is a “legal misnomer” and is actually a form of a property settlement. Pursuant to Alabama case law, “alimony in gross” is considered compensation for the recipient spouse’s marital rights and may also represent a division of the fruits of the marriage where liquidation of a couple’s jointly owned assets is not practicable. An alimony-in-gross award must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested. It must also be payable out of the present estate of the paying spouse as it exists at the time of the divorce. In other words, alimony in gross is a form of property settlement and is not what most people consider as “alimony.”

Hiring an Experienced Birmingham Divorce Attorney Can Prevent Future Problems

A poorly drafted settlement agreement can lead to confusion for the parties and future courts. Therefore, when drafting divorce agreements and property settlement, Harwell Law Firm LLC specifically uses the terms “periodic alimony” AND “spousal support” when referencing monthly support payments which will be made pursuant to a settlement agreement. In contrast, the term “alimony in gross” is not utilized by our firm in any divorce settlement agreement and any such payments are clearly defined as a property settlement. Unlike Alabama periodic alimony payments, which cease upon the remarriage or cohabitation of the spouse receiving monthly payments, property settlement payments cannot be terminated, modified or reduced unless the receiving spouse agrees to modify the property settlement award.