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Divorce? Division of your Property Might not be as Simple as you Think.

  • By:Kyle Hankins
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Indiana Property Distribution Overview

Indiana generally accepts a fair and reasonable agreement between the parties with respect to their property division. If the parties cannot agree, then the property is divided by the courts.

Indiana is an equitable distribution state, and it follows a “marital pot” philosophy. This means that the court throws all the assets into one “pot”, and then it is distributed “equitably.” It is important to understand that “equitable” does not mean equal, or even half, just what the court considers fair.

In Indiana there is a rebuttable presumption for equal division of property. This means that a spouse can defeat equal division of the property if the spouse can show evidence that an equal division of the property would not be fair or reasonable.

A couple quick points: 1. If you have only been married a short time, the court would likely allow you to keep what you brought into the marriage; 2. If your spouse gambled, lost, or made very bad business decisions the court can consider this in property division.

50/50 Factors

I.C. 31-15-7 lists these factors that the court may consider in determining whether or not a 50/50 split is appropriate:

  • the contribution of each spouse to the acquisition of property, regardless of whether the contribution was income producing;
  • the extent to which the property was acquired by each spouse before marriage or through inheritance or gift;
  • the economic circumstances of each spouse at the time of the disposition of the property, 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 a spouse having custody of any children;
  • the conduct of the parties during the marriage as related to disposition or dissipation of their property; and
  • the earnings or earning ability of the parties related to a final division of property and final determination of property rights of the parties.

Right now you might be thinking that you can prove 3 or 4 of those factors, maybe even all 5. If this is the case – PLEASE CONSULT AN ATTORNEY. I beg you, do not try and convince a court that you deserve more without some type of legal guidance, and no, this does not count as legal guidance.

Who Gets the House

Usually this is where things heat up. The marital home is usually the largest asset in the marriage. The equity of the home is what needs to be divided. Equity is the market value of the home at the time of separation minus debts or liens (mortgage). So parties agree that the market value is $100,000 and there is $65,000 in mortgage, taxes, and a credit line on the home. That means that $35,000 needs to be divided between you. To do that you would usually choose one of these three options:

  • The spouses sell the home and divide the proceeds.
  • One of the parties may refinance the home and buy out the other party.
  • One spouse (usually the custodial parent) remains in the home with the exclusive use and possession for a certain period of time (for example, until the youngest child graduates from high school), then either buys out the other spouse or sells the home and divides the proceeds.

Get Some Help

Should you find yourself suddenly facing divorce, or if you are just planning ahead, please take the time to consult an attorney. An experienced attorney can help you collect the documents you need and guide you through a tough time. If there are large assets on the table, an attorney can actually save you money in the long run.

Posted in: Legal Consultation

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