Keith Mack
If you are in a common-law marriage in Alabama and own property together, you may be wondering what would happen to your home if you and your partner separated. In Alabama, landlords must follow certain legal procedures to evict tenants, which include providing tenants with sufficient notice and an opportunity to respond. However, if you and your partner own the property together, the situation is more complex. In Alabama, judges equitably split marital assets rather than dividing marital property equally, so it is important to understand your rights and options in this situation.
| Characteristics | Values |
|---|---|
| Common-law marriage in Alabama | A common-law marriage is just as valid and binding as a formal church wedding. It lasts until a court grants a divorce or one partner dies. |
| Common-law marriage requirements | People who have lived together for many years, call themselves husband and wife, and have many children may not have a common-law marriage if one of them is still married to someone else. |
| Common-law marriage proof | You will have to prove your marriage to be able to inherit, receive insurance benefits, Social Security Survivor's Benefits, or pension benefits. |
| Eviction notice | Landlords must provide proper written notice to the tenant to vacate for cause. This is typically 7–14 days depending on the reason. |
| Eviction notice requirements | The notice must state the lease violation and give the tenant a specified number of days to fix the issue or move out. |
| Eviction complaint | If the tenant fails to comply after receiving a proper eviction notice, the landlord can file an eviction complaint in court. |
| Eviction hearing | On the court date, both parties present evidence. If the landlord proves grounds for eviction, the judge will issue an order of eviction. |
| Eviction appeal | If a tenant doesn't appeal within 7 days, the sheriff can forcibly remove them and their belongings after a few days' wait. |
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What You'll Learn
Common-law marriage in Alabama
In Alabama, common-law marriage is a type of union where a couple lives together and presents themselves as married without obtaining a marriage license or undergoing a formal ceremony. Common-law marriages are legally binding, and they can only be ended by a divorce or the death of one spouse.
Historically, Alabama law required individuals in common-law marriages to enter into agreements to be in a marriage relationship and then present themselves publicly as "married". The easiest way to do this was through an affidavit of common-law marriage, a notarized statement giving each spouse's consent to have their relationship recognized as such.
However, in 2016, Governor Robert Bentley signed a bill abolishing common-law marriages in Alabama. This law came into effect on January 1, 2017, and meant that any new common-law marriages after this date would not be recognized. Couples seeking marriage must now undergo a formal process, including a ceremony and providing appropriate marriage documents to a probate court.
Despite this change, common-law marriages that began before January 1, 2017, are still recognized and treated as legal marriages. These marriages enjoy the same rights and responsibilities as traditional marriages, including the division of property, custody, and the ability to inherit a spouse's property. To prove a common-law marriage, individuals may need to demonstrate their intent to be married, and they may face challenges if one spouse denies the existence of the union.
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Grounds for eviction
Alabama is considered an equitable distribution state, meaning that property and debts shared by divorcing parties are divided in a way that is most fair and equitable. If you are in a common-law marriage, any property agreements drafted before or during the union will be upheld. If there is no agreement in place, all marital property may be divided under a plan of equitable distribution.
In Alabama, a landlord cannot legally evict a tenant without cause. Legal grounds for eviction include:
- Non-payment of rent: Landlords must give tenants a 7-day notice to quit, which gives them the opportunity to pay the balance due or vacate the premises.
- Lease violations: Landlords must serve the tenant a 7-day notice to comply or vacate, which allows the tenant to fix the issue or move out. If the tenant does not correct the violation or move out, the landlord can file an eviction lawsuit.
- Illegal activity on the premises: Landlords must serve the tenant a 7-day notice to vacate. The tenant must move out within the 7-day period without the option to fix the issue.
- Dishonesty in the rental application: Tenants are given a 7-day notice to quit and have 7 business days to vacate the property.
- No lease or lease termination: A landlord can evict a tenant who does not have a lease or has a lease that has terminated and continues to remain on the premises. For week-to-week tenants, 7 days' notice must be given, and for month-to-month tenants, 30 days' notice must be given.
If you receive an eviction notice, it is important to act quickly and file an answer at your county courthouse within 7 calendar days. You can write a response on a piece of paper or use a form, stating that you "deny everything and demand proof". You have the right to go in front of a judge and tell your side of the story.
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Property rights
Alabama recognizes common-law marriages as legally binding, provided they began before 2017. For a common-law marriage to be valid, both parties must have the legal right to marry, intend to be married, and hold themselves out to family, friends, and the community as being married.
In Alabama, marital property may include actual assets, as well as the appreciation of real property, business profits, or investments that occurred during the marriage. It is considered an equitable distribution state, meaning that property and debts shared by divorcing parties are divided in a way that is most fair and equitable, rather than a 50/50 split.
For example, if a wife inherits a house from her family, but her husband invests his time and money in paying the mortgage, covering repairs, or making improvements, the court could consider that property marital property. Similarly, if the property was used for the benefit of the marriage, it could be deemed marital property, even if it was separate at the outset. This is sometimes referred to as "commingling" property.
If a couple files for legal separation prior to divorce, any asset acquisition or appreciation of those assets after that point (assuming marital property was not used in the process) may be deemed separate property. Any agreements drafted before or during the union regarding property distribution will be upheld, absent any major issues with the contract.
It is important to note that Alabama law makes it impossible to disinherit a spouse. Alabama's Probate Code gives the surviving spouse the right to inherit either one-third of the decedent's estate or the entire estate, less the surviving spouse's own separate property.
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Legal procedures for eviction
Alabama's eviction laws vary from county to county, but they follow a general eviction process. The landlord must have legal cause to evict a tenant. Legal causes include failure to pay rent, violation of the lease or rental agreement, or dishonesty in filling out the rental application.
Before filing for eviction with the court, the landlord must issue the tenant a notice to comply. The tenant then has 7 calendar days to file an answer at their county courthouse. If the tenant does not file an answer, the landlord can get a "default judgment", meaning they automatically win the case. If the tenant files an answer, they will receive a court date. If the tenant cannot attend court, they can file a "motion" with the court asking for a new court date.
At the court hearing, the judge may ask the tenant to speak to the landlord or their attorney in the hallway before the hearing to try to reach a "settlement". If the tenant reaches an agreement with the landlord, they get to stay. If the tenant does not reach an agreement, the judge will make a decision. If the judge rules against the tenant, there will be a "Judgment" against them, and a Writ of Possession can be issued. This allows the sheriff to remove the tenant and their belongings from the home.
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Appealing an eviction
Alabama landlords seeking evictions must follow specific legal procedures, including providing proper notice to tenants and getting a court order before removing tenants from the property. Tenants facing eviction also have rights and should understand the procedures and their responsibilities under Alabama's landlord-tenant laws.
If you get an eviction notice, you must act quickly and not ignore it. The papers may be posted to your door or handed to someone who lives with you. You must file an answer at your county courthouse within 7 calendar days. If you do not file an answer, the landlord can get a "default judgment," meaning they automatically win the case. In most counties, you will not get a court date unless you file an answer. You can use a form or write on a piece of paper, "I deny everything and demand proof," ensuring your name, the landlord's name, and your court case number are on the paper. You do not need to include a lot of information or any evidence in your answer.
If you cannot attend court, you can file a "motion" to request a new court date. If you do not receive a new date, you must attend the original date. The judge may ask you to speak to your landlord or their attorney in the hallway before the hearing, and you may be able to reach a "settlement." Your landlord may offer you time to move or work out an agreement to pay back rent. If you reach an agreement, ensure that you, your landlord, or their attorney tells the judge. Remember, you do not have to settle your case. You have the right to go in front of the judge and tell them your side of the story.
If the judge rules against you, there will be a "Judgment" against you, and a "Writ of Possession" can be issued on the 8th day, allowing a sheriff to remove you and your belongings. However, if you win the case, the eviction gets dismissed. If you are able to work out an agreement, you get to stay. If the notice was bad, you may still owe money, and the landlord can restart the process.
You have 7 calendar days to file an appeal at the courthouse by paying a certain amount of rent to the court, called the "appeal bond." If you do not file an appeal, a "Writ of Possession" can be issued, as mentioned earlier.
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Frequently asked questions
Yes, but only if she is a tenant and you are her landlord. You must also have valid grounds for eviction, such as non-payment of rent or lease violations.
Common grounds for eviction in Alabama include non-payment of rent and lease violations. Landlords cannot evict for discriminatory or retaliatory reasons.
Landlords must first provide tenants with proper written notice of any lease violations or reasons for eviction. Tenants will then have a specified number of days to either comply or vacate the property. If the tenant fails to comply, the landlord can file an eviction complaint in court.
Alabama is considered an equitable distribution state, meaning that in the event of a divorce, marital property and debts will be divided in a way that is most fair and equitable, rather than a 50/50 split.
If your wife contests the eviction, you will have to attend a court hearing. If the judge rules in your favour, your wife will have 7 days to appeal the decision. If she does not appeal, a sheriff can forcibly remove her and her belongings from the property.
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