We receive questions all the time from clients and prospective clients regarding divorce settlements and what is considered “fair divorce settlement.” Unfortunately, there is no quick and straightforward answer to that question. The division of property in Indiana depends greatly on the facts and circumstances of each case. As such, determining what is a fair divorce settlement will ultimately turn on the facts and circumstances of each case. However, there are some uniform concepts and rules that will help give you an idea of what a fair divorce settlement would look like. In this blog, we provide a brief overview of how property is divided in Indiana and provide some tips to keep in mind in determining what is a fair divorce settlement.
In divorce cases, it is well established in Indiana that all “marital property” goes into the marital pot for division. Marital property is property owned by either spouse, regardless of if the property was acquired before the marriage or during the marriage. Nor does it matter if the property is titled in only one of the spouse’s names, or if it is jointly titled. All property is presumptively marital property. Additionally, Indiana’s “one-pot” theory prohibits trial court’s from excluding any asset in which a party has a vested interest. Even more, In Indiana, there is a presumption that all marital property is divided equally between the parties. Thus, as a starting point in determining what would be a fair divorce settlement, remember that you are presumptively entitled to at least 50 percent of the marital estate.
Therefore, before you can determine what is a fair divorce settlement, it is important that you obtain a true and accurate accounting of all assets held by either party, regardless of how the property may be titled. Without a full and accurate accounting of the parties’ assets, there is no true way to determine what would be a fair divorce settlement. The same is true for obtaining a full accounting for the marital debt of the parties. For example, the marital home may be worth $300,000, but if there is a mortgage on the home of $270,000, then the equity in the marital home, i.e., $30,000, would be the true value of the asset that is the marital home. If you don’t obtain a full and accurate accounting, you may find yourself getting a much worse deal than you would in court.
Another important tip to remember in attempting to determine what is a fair divorce settlement is to account for the tax implication involved in a divorce settlement. Many individuals fail to consider the fact that they may be taxed on marital assets received via a divorce settlement. For example, a common tax implication that arises from assets involved in divorce matters are the tax implications involved with retirement accounts, such as pensions or 401(k). In determining what would be a fair divorce settlement, you must consider the value of the asset on an after-tax basis, otherwise, you could find yourself in a position where you are getting a much worse deal than you would in court.
These types of situations are extremely fact-sensitive. Divorces are emotional times for all involved. Not only are they emotional, but often time complex, especially when it comes to property division. Obtaining skilled counsel is key to relieving some of the burdens that come 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.