Marriages, particularly those of a long duration, usually intermix marital property of all kinds in organic ways that can be hard for the divorce court to untangle in dividing the marital estate in a just and reasonable manner. There are many aspect of the evidence the trial court must consider. In this blog, we cover five key things that apply in most divorce cases.
The first is Indiana follows a one-pot theory, whereby property owned by the parties coming into the marriage, acquired during the marriage up to the point a divorce is filed is marital property.1
Second, the net marital “property” estate is essentially assets minus liabilities.2 The divorce court starts with the presumption that it divides this marital pot equally. The Court can deviate and has wide latitude to do so with a 60/40 division not being atypical.
A key third point is some marital “property” is too speculative to be valued and is not within the marital estate. A common exception is unvested stock options. Indiana appellate court has consistently held that only property in which the party has a vested interest at the time of the dissolution may be divided as a marital asset. This means any stock option that is not presently vested is not a property interest subject to division and distribution in divorce.3
Fourth, certain benefits, typically found under federal law are not included in the marital pot. This may make a significant difference in the marital estate before the divorce court. For instance, the anti-assignment provision of the Social Security Act prevents state courts from assigning social security benefits in a dissolution decree.4
Finally, property that is owned by someone else, but being possessed or used by the parties, is not subject to division. In other words, if a friend or parent has allowed adult children to use a motor vehicle in their marriage, the trial court cannot award possession and consider value of property owned by someone else. However, the burden is upon the parties to identify that for the trial court.5