Divorce is never easy, and one of the most difficult aspects can be deciding on living arrangements during the process.
In Alabama, there are no automatic rules about which spouse has to leave the marital home when a divorce is filed. The answer depends on the specific circumstances of each case.
This FAQ will cover the key factors Alabama courts consider when determining who can remain in the house during a divorce proceeding. It will also provide an overview of the typical process and options available to divorcing spouses.
Do I Have to Leave the Marital Home When Divorcing in Alabama?
When a divorce complaint is filed in Alabama, neither party is automatically required to vacate the marital residence. Both spouses have equal rights to remain in the home until the court issues a specific order or the divorce is finalized.
Alabama is an "equitable distribution" state, which means all marital property and assets must be divided in an equitable (fair) manner in a divorce, even if one spouse's name is on the deed or mortgage.
The home is considered a jointly-owned marital asset, regardless of whose name is on the title. As such, both parties presumptively have a right to continue living there through the divorce process unless a court rules otherwise.
Factors Considered When Determining Possession of the Home
While neither spouse has to leave the marital residence automatically, the situation can become unworkable if both parties try to remain under the same roof.
In these cases, the court will aim to make possession and visitation arrangements in the best interests of any minor children involved.
Some key factors Alabama judges consider when determining which spouse should have exclusive possession of the home include:
- Child custody and stability for minor children;
- Each spouse's financial resources and ability to afford alternative housing;
- Any instances or credible risk of domestic violence;
- The actions of each party during the divorce process;
- Which spouse has been the primary caretaker of the home;
- Each spouse's separate property or assets that could provide alternative housing; and
- Any specific, compelling circumstances favoring one party over the other.
The court will weigh all relevant factors and aim to make a decision that maintains continuity for any minor children while avoiding an unfair economic disruption for either spouse.
Exclusive Use and Possession Orders
If divorcing spouses cannot agree on living arrangements, either party can request what's called an "exclusive use and possession" order from the court.
This temporary order allows one spouse to remain in the marital home while excluding the other spouse during the divorce proceeding.
The court will review the same factors listed above to decide on an exclusive possession order. The primary focus is determining what living situation is in the children's best interests and avoiding any domestic conflict or violence.
An exclusive possession order merely governs the living arrangements during the divorce itself. It does not mean the spouse who leaves automatically forfeits their share of the home's value as a marital asset subject to division.
The court also has the discretion to order the spouse remaining in the home to pay certain expenses, such as the mortgage, utilities, and maintenance costs during the divorce.
Options if Ordered to Vacate the Marital Residence
An Alabama court may ultimately order one spouse to temporarily vacate the marital home if the specific circumstances of the case warrant it.
However, this doesn't strip that spouse's legal claim to a fair share of the home's value.
Some common options for the temporarily displaced spouse include:
- Rental property or staying with family/friends;
- Draw against equity in the home to secure alternative housing;
- Request temporary alimony/support to cover housing costs; and
- Live in any other separate property they own.
The displaced spouse maintains their legal interest in the marital home as an asset subject to division and distribution in the final divorce settlement.
Selling or Keeping the Marital Home in an Alabama Divorce
Divorcing couples have two main options regarding the ultimate disposition of their marital home.
#1 — Sell the Home and Split the Net Equity Proceeds Equitably
If the home is sold, any remaining mortgage balance is paid off from the sale price. The spouses then receive their equitable share of any remaining net proceeds after accounting for the costs of sale.
#2 — One Spouse Can "Buy Out" the Other's Interest and Keep the Home
Either spouse can opt to remain in the home long-term. To do so, they must compensate the other spouse for their share of the home's net equity value.
Appraisal and accounting for the outstanding mortgage principal determine the net equity value. The buyout amount is normally one-half the home's equity, but other factors in the couple's settlement negotiations can adjust the division.
Moving Out of the Marital Home Voluntarily
Even if not court-ordered, sometimes, one divorcing spouse may voluntarily decide to move out.
- Perhaps continuing to live together is too difficult emotionally;
- Or maybe the costs of maintaining two households are too financially burdensome.
From a legal standpoint, willingly vacating the marital residence does not mean forfeiting your rights or claims to a share of the home's value. The house remains a jointly-owned asset subject to equitable division.
However, moving out against your wishes based on threats, domestic violence, or fear can potentially impact your legal rights.
Any party facing an aggressive or hostile home environment should first take steps to protect themselves and then let the court sort out the proper resolution.
In any case, it's advisable for any voluntarily departing spouse first to take these precautions:
- Get documentation confirming their legal interest and share of equity in the home;
- Secure duplicates of records like the mortgage statement, deed, etc.;
- Record the current condition of the home with photos or video; and
- Retain any evidence of their historical contributions to the upkeep, mortgage, utilities, etc.
Maintaining clear documentation protects your rights to your share of the home's value in the final divorce settlement.
Discuss Your Options With a Family Law Attorney
These are just the basics when it comes to determining living arrangements and dealing with the marital home in an Alabama divorce. Every situation is unique based on the specific circumstances involved.
The best advice is to consult with an experienced Alabama family law attorney. A lawyer can evaluate your individual situation, advise you on the best strategy for your goals, and take the proper legal steps to protect your rights and interests.
Divorce is never easy, but the proper legal guidance can help you navigate this difficult transition while securing your fair share of marital assets like the home you've worked hard for.
Contact Baxley Maniscalco today to schedule a confidential consultation with our team of experienced Alabama divorce attorneys. We'll listen to your situation, explain your options, and fight to protect everything you've built.