How is Marital Property Divided in a Divorce

Marital property is any real or personal property, assets, and debts that were obtained during the marriage. This includes their cash, investments, salaries, retirement accounts, any houses or land, vehicles, businesses, mortgage loans, etc. Any property that one spouse had before the marriage is not included in the marital property. Instead, it would be considered separate property unless deemed otherwise by agreement or the Circuit Court judge. If the spouses separate before their divorce in Madison County, then any property one spouse obtains during that time is considered to be their separate property and not marital property. Most states, or community property states, divide marital property equally between each spouse in a divorce. In these states, each spouse owns everything together as soon as they are married even if the property was separately owned going into the marriage. However, Alabama is not a community property state.  How is Marital Property Divided

In Alabama, the value of marital property does not have to be split equally between the spouses. It is best to have a settlement agreement, or written contract, determining how the marital property shall be divided. This allows the couple to decide exactly how each piece of property will be divided rather than facing the uncertainty of it being left up to the court. The couple may reach an agreement either before the marriage as a prenuptial agreement, or the agreement may be reached after the marriage as a postnuptial agreement. If either type of marital settlement agreement exists, then the Circuit Court judge will order that the marital property is to be divided according to the agreement, but if neither exists, then the judge has complete discretion when determining how all of the property should be divided between the couple. The judge will try to divide the property as reasonably and equitably as possible, but the term “equitably” does not guarantee that the marital property will be divided equally.

Numerous factors will be considered before the judge reaches a decision on how to divide the marital property. The judge may consider the age, health, income, and contributions of each spouse as well as the duration of their marriage. The judge may also look to which spouse has custody of their children (if applicable). The value of the real estate will be considered, but if the couple have children, the home will likely be awarded to whichever spouse has custody of their children. The judge may even base their determination off of any misconduct or damaging behaviors that took place during the marriage, which could include actions that were unfaithful or abusive.

The judge will also consider any work done or improvements made to all separate and marital property as well as the time, energy, and resources that were spent completing the work or improvements. If one spouse significantly contributed their time, energy, and resources to improve the separate property of the other spouse, then the judge may deem that specific piece of property to be marital property even if that one spouse separately owned it before entering the marriage. 

For businesses, the judge will typically look at which spouse worked and contributed to it, the time put into it, and the resources that were used to fund it before deciding how it should be distributed between the spouses. To avoid all of this, it would be in the divorcing couple’s best interest to try to reach a mutual divorce agreement in Tuscaloosa, or wherever you live, regarding the division of their marital property.

Quick Contact

Choose from the office locations above for contact details



Fill Out a Questionnaire

Get started


Make Payment