When a couple gets divorced, all results from the marriage must be sorted out by the courts. In a divorce case, the courts must turn the 1 household that existed during the marriage into 2 separate households. A universal issue for the courts to tackle is property division, specifically Indiana property division.
A divorcing couple should each retain a separate Family Law attorney. This is because property division laws can be complex and lawyers have the proper training/experience to tell the judge what a divorcing spouse wants and/or needs from the property division.
Property Division Divorce Laws in Indiana
The purpose of property division laws is to make sure that marital property is allocated to each spouse equally, generally in a 50-50 split. However, if a 50-50 split would not be equitable under Burns Ind. Code Ann. §31-15-7-5, the trial court may divide the property in a more equitable fashion. The trial court judge receives great discretion when converting Indiana marital property into separate Indiana divorce property.
Indiana is an equitable distribution state. This typically means that with regard to Indiana divorce assets, anything the spouses had prior to a marriage usually will not be included in Indiana divorce assets or Indiana divorce property.
However, separate & non-marital property may be included in Indiana property division under Burns Ind. Code Ann. §31-15-7-4(a).
What is considered Marital and Non-Marital Property?
Indiana marital property consists of all items acquired during the marriage by either spouse as well as separate items that were brought into a marriage and converted into marital property.
Non-marital property is classified as property that each spouse had before the marriage or acquired individually without including it into the marital property.
Ultimately, the court will decide whether particular property will be included in the property division and the distinction of marital vs. non-marital property alone is not enough to prevent a particular piece of property from being part of the property division.
Dividing Assets and Debt
After the court decides which property is available for distribution, the next step is property valuation. The final step is the allocation of marital property in a 50-50 split or another type of split allowed under Burns Ind. Code Ann. §31-15-7-5.
Using a number of factors, including the consideration of tax consequences, judges decide how a marriage's assets should be divided. Here is a list of the most common property items and the most common allocation scheme used.
- Cash: Divided equally among the spouses.
- Example 1: A joint savings account has $5,000. The court would most likely award $2,500 to each spouse.
- Example 2: A joint savings account has $5,000. One spouse contributed $4,000 and the other contributed $1,000. The amount will likely be divided 50-50 or may be more balanced if the $1,000 contributor has fewer assets than the $4,000 contributor.
- Retirement Plans: Divided equally based
on the duration of the marriage at the time the benefits accrued, looking at
the present value of the plan and/or survivor benefits.
- Example 1: A spouse got benefits in a retirement plan after working for 25 years and was married for 10 of those years. The ex-spouse would be entitled to half of the retirement plan that was acquired during the marriage.
- Example 2: A spouse has an unvested retirement plan. No division takes place until the plan is payable to the spouse who has it.
- Vehicles: Divided based on the values as
determined by the court. May be sold or
given to a spouse outright.
- Example 1: The title to a car acquired during a marriage is in one spouse's name. The car may be sold with proceeds divided in a 50-50 split or divided among the spouses in some way. Example 2: A boat has a shared title. The boat may be sold with the proceeds going to each spouse 50-50 or the boat may be given to a poorer spouse.
- Insurance: Determined based upon each
spouse's health, availability of alternate insurance and premium payments from
- Example 1: One spouse has covered the other under employer health insurance. The other spouse is in poor health and could not afford alternate health care coverage. The court may order the first spouse to continue covering that spouse for a set time period.
- Example 2: One spouse has a life insurance policy where the ex-spouse is to get survivor benefits. The court may order this to continue and/or award the ex-spouse a cash award to get new coverage.
Settling Disputes in a Divorce Case with Property and Asset Division
Burns Ind. Code Ann. §31-15-7-10 governs the enforcement of property division orders. The courts may enforce the order through contempt, an income withholding order or any other remedies at its disposal.
The trial court receives broad discretion in property division and orders are not modified unless there was a clear abuse of discretion in the trial court's reasoning. All evidence must be presented at the time of the property division since you can not get an order changed for forgetting to mention something in the earlier proceeding.
Help From an Indiana Property Divorce Lawyer
It can not be stressed enough that retaining an Indiana property divorce lawyer is key to getting the fairest and most equitable result in the property division phase of a divorce. The lawyer can provide professional guidance, keep you informed of likely outcomes and help you present the best arguments and presentation to the trial judge handling the divorce.