Just as every marriage is unique, so too is every divorce. Although the basic legal issues tend to be common from one divorce to the next, the importance and complexity of those issues will vary with the circumstances. Nowhere is this more true than with same-sex couples and property division.
EQUITABLE DISTRIBUTION MOSTLY WORKS
Alabama follows the equitable distribution model of property division. This means that, at the outset of a divorce, the court will seek to classify the couple’s property as either separate or marital property. Separate property is that which is owned entirely by one spouse and will typically remain with that spouse following the divorce.
The marital property represents the bulk of the couple’s assets – everything acquired by both spouses throughout the marriage. It is subject to equitable distribution, meaning that the court will seek to divide it fairly between the parties. Sometimes this means an equal division, sometimes not.
EQUITABLE DISTRIBUTION CAN CREATE PROBLEMS FOR SAME-SEX COUPLES
One of the primary aspects of equitable distribution is that the classification of property is dependent upon the date of the couple’s marriage. This makes sense in the context of heterosexual marriages but may not work as well for same-sex couples. Since same-sex couples were not legally able to marry until 2015, they could have been effectively married long before the law was changed.
The result is that a court-ordered equitable distribution of their property, based upon the date of their marriage, may not accurately reflect the duration of their marriage in fact. To avoid this potential problem, same-sex couples may want to engage in a mediated divorce. This way, they control how their property is divided, so that the totality of their relationship is taken into account, rather than that recognized by recent law.