Going through a divorce is one of the most stressful events in a person’s life. On top of the emotional and mental aspects of divorce, it can also create complex financial issues. Common questions include “who gets the house?” or “who gets the retirement fund?”. Unfortunately, there is no hard and fast rule to answer those types of questions. Each case is fact sensitive. This is where seasoned divorce attorneys and clients spend their time; trying to figure out what makes sense financially and otherwise in the division in the post-divorce world. This blog provides a brief overview of what constitutes marital property, as well as the factors courts rely on in dividing up the marital property.
The first thing to note is that, in Indiana, all property is considered “marital property” subject to division by the court. It does not matter how, or when, the property was acquired, even if it was brought into the marriage by one spouse. Nor does it matter in whose name the asset/property is titled. Every asset you and your spouse owned, either jointly or separately, is considered to be marital property subject to division. This does not mean, however, that a court will necessarily divide all property that is marital property equally. Instead, it simply means that a court must consider all property as a marital asset before awarding it to one party or another and making an unequal division. There are many factors that could affect assets being awarded to one party, such as whether there is a prenuptial agreement.
Indiana follows what is known as the equitable distribution doctrine for property division. This doctrine, codified in statute, says that courts should distribute property in a “just and reasonable manner.”1 This requires a fair distribution, not an equal distribution. However, there is a presumption in Indiana that a 50/50 division of marital assets is “just and reasonable.”2 This presumption can be overcome if evidence is offered by one of the parties that an equal division would not be just and reasonable. If this is your case and an unequal division of property is warranted, counsel can use an innumerable number of factors to argue for an unequal division.
To overcome the presumption for equal division, courts look at five different factors: (1) the contribution of each spouse to the acquisition of property, regardless of whether the contribution was income producing; (2) the extent to which the property was acquired by each spouse before the marriage, or through inheritance or gift; (3) the economic circumstances of each spouse at the time of the disposition of the property is to become effective; (4) the conduct of the parties during the marriage as related to dissipation of their property; and (5) the earning or earning ability of the parties.3 If a party is able to present evidence showing that a majority of these factors weigh in his or her favor, then a court may deviate from the presumption of a 50/50 split.
Divorces are emotional times for all involved. Not only are they emotional, but oftentimes complex, especially when it comes to the property division. Obtaining skilled counsel is key to relieving some of the burden that comes with divorce. This blog was written by attorneys at Dixon & Moseley, P.C. who handle divorces of all types throughout the state. It is written and posted for general educational purposes and is not to be construed as legal advice or solicitation for services. It is an advertisement.