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  5. How Does The Divorce Court Value And Divide Our Marital Estate If We Have Been Physically Separated For A While?

How Does The Divorce Court Value And Divide Our Marital Estate If We Have Been Physically Separated For A While?

On Behalf of Dixon & Moseley, P.C. | Sep 10, 2020 | Division of Assets, Divorce, Family Law

There are many times couples physically separate but continue to stay married. There are a variety of reasons this occurs. For instance, maybe one spouse has a chronic medical condition and would lose health care coverage he or she has under the other spouse’s group medical plan upon divorce. However, in most cases, there comes a time when a party who has been separated for a time from their spouse wants a divorce to move on (perhaps with a new romantic interest). This raises a profound question. What is in the marital pot for the court to divide? Is it the assets and liabilities as they existed at the time of the physical separation? Or is it the assets and liabilities at the time the divorce is filed? What if one party has accumulated significant wealth since physical separation? In this blog, we try to answer these questions and provide insight to potential options for individuals in similar situations.

As a threshold matter, Indiana, is a one-pot theory state. This means the divorce court will divide the property of the parties, whether it was owned by either spouse before the marriage, acquired by either spouse in his or her own right after the marriage and before the final separation by the parties, or acquired by the parties by their joint efforts up to the date of filing.1 While this one-pot speaks in terms of assets, it also includes liabilities. With all assets and liabilities accounted for, the court presumes that an equal division of the marital property between the parties is just and reasonable. In simple terms and by way of example, if all of the marital assets are liquid (cash sitting in a bank account), the court would take all of the cash, minus the debts, and divide and distribute the net of debts equally to the parties.

This noted, by definition, a “final separation” for purposes of a divorce filing means the date of filing of the petition for dissolution of marriage.2 This is obviously different from the date of physical separation where the parties physically separated much in advance of the filing for divorce, which, again, may be years before. This noted, the divorce court must value the assets to be divided in the marital pot between the date of the filing of the dissolution petition and the date of the final hearing.3 At this point, good lawyering may provide a solution where a situation exits where equal division in this situation would be unjust because of, and based upon, the years of physical separation of the litigants.

Specifically, the presumption for an equal division may be rebutted by a party who presents any relevant evidence that this would not be a just and reasonable division of the marital property. The statute allowing for a deviation and an unequal division even sets forth some reasons the divorce may consider in making said unequal division:

  • The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
  • The extent to which the property was acquired by each spouse before the marriage or through inheritance or gift.
  • The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.
  • The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
  • The earnings or earning ability of the parties as related to a final division of property and a final determination of the property rights of the parties.4

However, any relevant argument may be made if you can show in the evidence that an equal division would be unjust. For example, assume one parent leaves the family, moves away, and leaves the care-giving of the children to the other parent, but in relocating the parent is able to get a great job and amasses a large retirement account while the other parent struggles as a sole caregiver to the children, forgoing his or her career. In such cases, if properly presented in the evidence, would not allow the court to pick a valuation date outside the filing of divorce and the final hearing, but deviate in favor the caretaker of the children because he or she could not get a good job and advance through the ranks and simultaneously take care of the children. Literally, and reason showing, an equal division is unjust can justify a deviation, including the date of physical separation and financial implications for each parent (or party, if there are no children involved). But this must be developed in the evidence and carefully presented in court to have chance of success. Mere testimony that a party wants an unequal division is insufficient.

Dixon & Moseley, P.C. advocates handle a wide array of domestic cases throughout the state, including those with complex assets and/or liabilities. Every case is unique and there are numerous tools available to a skilled family law attorney to advocate an unequal division of the property that meets your needs as long as there is a nexus between your position and the division you seek. This blog is written for general educational purposes only. It is not intended as legal advice or a solicitation of services. It is an advertisement.

  • Indiana Code section 31-15-7-4.
  • Indiana Code 31-9-2-46.
  • Trackwell v. Trackwell, 740 N.E.2d 582 (2000).
  • Indiana Code section 31-15-7-5.
  • What Counts as Marital Property in Indiana?

    On Behalf of Dixon & Moseley, P.C. | Apr 19, 2026 | Uncategorized

    Executive Summary Indiana is a “one-pot” property state when it comes to marital property. This means that almost all property owned by either spouse at the time of the dissolution is included. Common types of marital property include property acquired during the marriage, property owned before the marriage, inheritances and gifts, retirement accounts and pensions, businesses, and debts and liabilities.…

    Parenting Time vs. Custody in Indiana: What Parents Confuse Most

    On Behalf of Dixon & Moseley, P.C. | Apr 15, 2026 | Uncategorized

    Executive Summary There are many differences and common misconceptions surrounding custody and parenting time. Custody, which is divided into legal custody and physical custody, deals with who has the authority to make major decisions about a child’s life and where the child primarily lives, respectively. Parenting time refers to the schedule of when each parent will physically spend time with…

    Can Custody Be Modified in Indiana? What Must Change

    On Behalf of Dixon & Moseley, P.C. | Apr 9, 2026 | Uncategorized

    Executive Summary Yes, custody can be modified in Indiana. Courts require a showing that modification of custody is in the best interests of the child and that there has been a substantial change in one or more statutory factors the court looks at when deciding custody. Some common examples of changes that warrant custody modification include a significant change in…

    How Indiana Judges Decide Child Custody—the “Best Interests of the Child” Standard

    On Behalf of Dixon & Moseley, P.C. | Apr 7, 2026 | Uncategorized

    Executive Summary When parents separate or divorce, child custody is often the most emotional and contested issue. In Indiana, judges do not award custody based on gender, income alone, or who “deserves” it more. Instead, courts apply a legal standard known as the “best interests of the child.” Courts consider 8 statutory factors to determine what custody arrangement is in…

    Is Indiana a 50/50 Divorce State? What the Law Really Says

    On Behalf of Dixon & Moseley, P.C. | Apr 5, 2026 | Uncategorized

    Executive Summary The short answer is no, Indiana is not a 50/50 divorce state, but it often starts out that way. Indiana does not require marital property to be divided equally in every divorce. Instead, Indiana follows the rule of equitable distribution, with a presumption that an equal division is fair unless evidence shows otherwise. The court looks at the…

    Step-Parent Adoption: How It Works in Indiana

    On Behalf of Dixon & Moseley, P.C. | Apr 5, 2026 | Uncategorized

    Stepparent adoption grants the same legal rights and responsibilities to a stepparent that a biological parent would have. In addition to meeting the requirements associated with any form of adoption, the stepparent must be leally married to the custodial parent to adopt their stepchild. The non-custodial biological parent of the child must consent to the adoption absent specific legal grounds…

    How Divorce Works in Indiana: Step by Step (2026 Guide)

    On Behalf of Dixon & Moseley, P.C. | Mar 24, 2026 | Uncategorized

    Executive Summary In order to divorce in Indiana, at least one spouse must meet the statutory residency requirement. There are numerous grounds recognized for divorce by Indiana courts, but the most common is irretrievable breakdown of the marriage. A spouse seeking a divorce must prepare a petition including information about any minor or dependent children they have, as well as…

    Indiana Guardianship Laws (2026): How to File, Costs, Types, and Alternatives

    On Behalf of Dixon & Moseley, P.C. | Mar 19, 2026 | Uncategorized

    Executive Summary A guardianship is a court supervised legal arrangement where a judge appoints a guardian to make decisions for someone that is incapacitated and unable to make decisions about their finances. To obtain a guardianship, a prospective guardian must file a petition for guardianship with the appropriate court, notify interested parties, and attend a hearing where a judge will…

    Indiana’s New Custody Law: What Parents Need to Know About Findings of Fact Executive Summary

    On Behalf of Dixon & Moseley, P.C. | Mar 17, 2026 | Uncategorized

    Indiana law now requires judges to explain child custody decisions in writing. As of July 1, 2025, Indiana courts must include written findings of fact and conclusions of law in final custody orders. This means judges can no longer issue unexplained custody rulings. Instead, they must clearly identify the evidence they relied upon and explain how it supports the custody…

    Protective Order in Indiana: Filing Online, What It Covers, and What Happens Next Executive Summary

    On Behalf of Dixon & Moseley, P.C. | Mar 12, 2026 | Uncategorized

    Indiana protective orders are civil court orders that can restrict contact, require someone to stay away from you, and impose other safety‑related conditions in situations involving domestic or family violence, sexual assault, stalking, harassment, or child sex grooming. In Indiana, petitions for protective orders can be filed through the state’s Protection Order E‑Filing Service, and once an order is issued,…

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