Disclaimer: This article is for educational purposes and does not constitute legal advice. Consult a licensed attorney in Alabama to discuss your specific circumstances.
Detailed Answer
In Alabama, the right to file a partition action depends on how you and your spouse hold title to the property. Under Alabama Code § 6-6-640, holders of real property as tenants in common or joint tenants may demand a judicial partition. However, married couples typically hold real estate as tenants by the entirety. Property held by the entirety enjoys special protections and cannot be unilaterally partitioned by one spouse during the marriage—even if you are separated.
Separation alone does not change your legal status or the type of ownership. You remain married until the divorce is final, so the entireties estate persists. The only time the court can divide that property is in divorce proceedings under Alabama’s equitable distribution rules. During the divorce, the court will classify marital and nonmarital assets and divide them equitably under § 30-2-51, Ala. Code 1975.
If you and your spouse own an asset as tenants in common—such as an inherited cottage or investment property held separately—you may file a partition action under § 6-6-640, Ala. Code 1975. In that case, you can ask the court to sell or divide the property between co-owners.
In most divorce cases, spouses negotiate a property settlement agreement or seek mediation to divide marital assets. You cannot bypass the divorce process by suing for partition of the family home held by the entirety.
Helpful Hints
- Review the deed: Confirm whether the property is held as tenants by the entirety or tenants in common.
- Consider a separation agreement: You and your spouse can agree to divide assets outside court.
- Mediation may help: A neutral mediator can guide you toward an amicable split of property.
- Keep records: Document contributions, improvements, and expenses related to the property.
- Consult a divorce attorney: They can explain equitable distribution and protect your interests.