The most helpful divorce litigant is one who understands the divorce process for the issues in their case (such as disputed custody or division of high assets marital estates). In this blog we will survey some of the key considerations a judge will typically utilize in dividing up high asset estates; generally, these are net marital estates that surpass one million dollars in net worth (after the liabilities are deducted).
The place to start in understanding how judges look at property division is with the presumptions in the Divorce Act (the statutes that have been passed by the legislature and signed into law). Indiana follows the one-pot theory, where all assets between the parties, no matter if brought into the marriage, acquired during the marriage, or obtain before the date of filing are all in the marital estate for division.1 In addition, there is a presumption that an equal division of property (assets minus liabilities divided by two) is just and reasonable.2
That said, the divorce court can make an unequal division and this is where good lawyering and presentation of the evidence are key. For instance, if one spouse has been a stay-at-home parent and the other spouse has gone on to a successful, high paying career, the court could use this as a basis for an unequal division as the stay-at-home parent will be unlikely to catch up in income-earning ability because of age and being out of touch with the norms of the work world. In addition, the court could order up to three (3) years of rehab maintenance so the spouse who has been out of the workforce can obtain additional schooling to enter the workforce in a more ready fashion.3
Where both spouses have established careers, the court may deviate if the evidence shows a vast difference in income between chosen professions. A classic example would be a teacher at a public school versus a surgeon. The difference in income would be significant and the court may consider a different division of the property to account for the same. However, there must be evidence (exhibits and/or testimony) to support this basis as a deviation. The court cannot just take judicial notice that these are vastly different incomes based on its own knowledge. You, with counsel, must get this evidence in the record.
Another place where the court may make an unequal division of the marital estate is if one spouse has wasted marital resources on vices, such as significant gambling losses or loss of a job or license due to illicit drug use. Ultimately, the court can deviate how it wishes so long as it has a legitimate reason from the 50/50 division if it is just and reasonable. Is this your case? If so, it is key to sort this out with your counsel to make the best argument you can for an unequal division.
This blog was written by attorneys at Dixon & Moseley, P.C. who handle divorce cases of all types throughout the state as well as appealing divorce final orders. This blog is intended as general educational information. It is not a solicitation for services or legal advice. It is an advertisement.