What recourse does my brother have to sell the house that is in his name while divorcing?
Full Question:
Answer:
Alabama is a so-called equitable distribution state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The trial court's discretion will not be disturbed on appeal without a showing of clear abuse.
Should property belonging to one of the parties be included in the marital estate for purposes of an equitable division? Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
If, upon divorce, one spouse has a separate estate that is insufficient for the maintenance of the spouse, the judge may award spousal support out of the other spouse's portion of the marital estate, taking into consideration the value of that portion and the condition of the spouse's family.
If the parties do have separate estates, the court may not consider the separate property of the parties, unless the court determines that the property in question or income derived from that property was regularly used for the common benefit of the parties during the marriage.
If the divorce is awarded based upon the misconduct of the other spouse, the court may consider that misconduct in making an award of support, but may not consider the separate property of the spouse in determining the amount.
As to the type of custody of the children, this will be based upon the best interests of the children. Factors which the court will consider are:
1. The agreement or lack of agreement between the parents on joint custody.
2. The past and present ability of the parents to cooperate with each other and make decisions jointly.
3. The ability of the parents to encourage the sharing of love, affection and contact between the child and the other parent.
4. Any history of or potential for child abuse, spouse abuse or kidnapping
5. The geographic proximity of the parents to each other.
Because joint custody is presumed to be in the best interests of the child, if both parents request joint custody, joint custody shall be ordered unless the court makes a specific finding as to why it should not be.
In order to implement joint custody, the court requires that the parents submit as part of their agreement provisions covering such things as the care and education of the child, the medical and dental care of the child, holiday and vacation visitation schedules, and child support. Unless otherwise prohibited by the court, all records and information pertaining to the child, including but not limited to, medical, physiological, dental, scholastic, etc., shall be available equally to both parents.
Each party has a duty to support any minor children of the marriage. In cases where the parties cannot agree on the amount of child support, the court will use statutory guidelines to determine child support based upon the income levels of the parents. The court may deviate from these guidelines if the parties agree to do so or it believes it is necessary in order to establish an order that is in the best interests of the children.