Alabama Property Division: How Equitable Distribution Works

By the FigureMyTax Editorial Team · How we calculate

Alabama is an equitable distribution state, not a community property state. Ala. Code 30-2-51(b) makes the marital estate subject to equitable division and distribution; the statute does not say equal and sets no percentage, so the judge divides the estate on the evidence.

Alabama divides the marital estate equitably

Section 30-2-51(b)(1) says the marital estate is subject to equitable division and distribution. That is the whole rule: the statute does not say equal, and it sets no percentage or formula. It also does not tell the court how to weigh the factors that make a division equitable; the judge decides on the evidence. See Ala. Code 30-2-51 for the full text.

How that differs from community property

In a community property state, property earned during the marriage is generally treated as belonging to both spouses from the start. The IRS describes the nine community property states in IRS Publication 555: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Alabama is not one of them. The Alabama statute does not start from an automatic half-and-half split; it calls for equitable division of the marital estate.

Retirement benefits are part of the estate

The statute specifically includes retirement benefits earned during the marriage, whether vested or unvested, in the marital estate unless the parties agree otherwise. A court may use any method of valuing, dividing and distributing them that is equitable, but the total payable to the noncovered spouse cannot exceed 50 percent of the retirement benefits the court may consider, unless the parties agree otherwise. Nothing in the statute requires a court to award any amount or percentage of one spouse’s retirement to the other.

Dividing what cannot be split

Some assets cannot actually be divided. In Kleinatland v. Kleinatland, the Court of Civil Appeals approved a judgment that left a husband’s Retirement Systems of Alabama account intact and ordered him to pay his wife an amount equal to her equitable share, treating it as alimony in gross. The court noted that the paying spouse should be able to pay from other resources without undue hardship, and that state retirement statutes exempt those benefits from levy, garnishment and assignment (see Ala. Code 36-27-28 and 16-25-23).

Fault and the allowance statute

When a divorce is granted in favor of a spouse for the other spouse’s misconduct, section 30-2-52 lets the judge make an allowance to either spouse out of the estate of either spouse, or none, as the circumstances justify, and says the misconduct of either spouse may be considered in setting the amount. Property acquired before the marriage or by inheritance or gift may not be considered in setting that amount. The statute’s text on property classification is explained in marital versus separate property.

What to do with this

Because the statute sets no percentage, the most useful numbers are your own: what each spouse holds, what is separate and what the debts are. The Alabama property division calculator lets you test different splits and shows the 50% retirement ceiling. Property and alimony are decided in the same case, so also see the Alabama alimony calculator.

Frequently asked questions

Official sources

• Ala. Code 30-2-51: allowance upon divorce; property; retirement benefits
• IRS Publication 555: community property states
• Kleinatland v. Kleinatland, Alabama Court of Civil Appeals (2016)

This is general information, not legal advice. It is based on the cited Alabama statutes, rules and court opinions, and every case turns on its own facts. Confirm how the law applies to your situation with a licensed Alabama attorney.