Separate vs Community Property in a Divorce: What’s the Difference?

One of the most important and often contentious aspects of a divorce is dividing up assets. Alabama is an equitable distribution state, which means that the courts will attempt to split assets up based on what they believe to be fair. Before they can begin this process, however, they will need to determine what assets are community property, and what is separate property. Understanding the difference between these two from a legal perspective is important for anyone getting divorced.

 What Is Separate Property?

Separate property is anything that either of the spouses brought with them to the marriage. In many cases, it will also include assets that were acquired entirely after a legal separation. For example, if the husband owned a cottage prior to getting married, that will be considered separate property. In addition, if the wife purchased a lottery ticket several months after getting a legal separation, and won a substantial amount of money, that too will typically be classified as separate property.

 Separate property will not be divided up by the courts during a divorce. Instead, these things will remain with the person who they belonged to before or after the marriage. These items will typically not be factored in when splitting up community property either. This means that just because the husband in the example above will keep the cottage, it will not impact who gets the marital house or other assets.

 What Is Community Property?

Community property is any asset that is acquired from the date of the marriage all the way through to the date of the legal separation. All assets that are community property will need to be split up during a divorce. When the courts are involved, they will split assets in a way that they believe will be equitable to both parties.

 In most cases, this means that rather than selling the family home and splitting the money, one of the spouses will get to keep the home. The other spouse may then get a larger portion of bank accounts, for example. Other factors can also be taken into account. For example, if there are minor children involved, the spouse who has them most of the time may be given the house so that the kids can remain in place. The courts are not obligated to make the division of community property even, just attempt to leave both parties in as good of a position after the divorce as possible.

 Fighting for Your Rights

When going through a contentious divorce it is not uncommon for a spouse to try to get as much of the community property as possible. They even fight for items that are important to the other spouse out of spite. Having an attorney at your side will help ensure a strong argument is made to protect your interests throughout the process. If you are going to be getting a divorce, please contact us to discuss your options today.

Written by John M. Totten

John M. Totten

John's office is in Athens, Alabama, where he has helped thousands of people in North Alabama with everything from family law issues, to catastrophic injury and death cases, to criminal defense.