Upon divorce, your investment accounts, whether it be a common stock portfolio, retirement account, or pension, is a property that is subject to division upon divorce. That leads many to ask the question of whether they will have to sell the investment account in order to divide it upon divorce? This blog provides a brief overview of how investment accounts are handled upon divorce and provide an answer to the question of whether you are required to sell such investments.
In Indiana, all marital property is subject to division in a dissolution of marriage. “Marital property” is property that is owned by either spouse, regardless of if the property was acquired before or during the marriage.1 As such, your investment account will be considered marital property subject to division. Furthermore, Indiana follows what is known as an equitable distribution of property theory upon divorce. This means that all marital property is divided in a “just and equal” manner, not necessarily a 50/50 division. However, there is a presumption that a “just and equal” division is a 50/50 division. An individual seeking to deviate from the 50/50 division will have the burden of overcoming the presumption that 50/50 is “just and equal.”
With an understanding of Indiana’s presumption of dividing property upon divorce, we can now begin to discuss whether or not you must be selling your investment account in order to divide it in divorce. The short answer to that question is no, you won’t be required to sell your investment account(s). This does not mean that you could not sell your investment account(s) if you so choose, but a court, albeit it absent special circumstances, will not order you to sell your investments. Instead, a court will most likely just divide your shares and award your ex-spouse half of the shares. Or, if it is a pension or retirement account, the court can put in place a Qualified Domestic Order (“QDRO”) which would give the ex-spouse half of your pension or retirement account. In doing so, this normally avoids a taxable event.
These types of situations are extremely fact-sensitive. Divorces are emotional times for all involved. Not only are they emotional, but oftentimes, complex, especially when it comes to property division and investment accounts. 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.