When faced with a potential divorce in Indiana, many people wonder how the court will divide the assets and debts of the parties. At the time of filing for a divorce, nearly every asset and debt is included in the marital estate, whether titled in one party’s name or the other or in the parties’ joint names, and will be divided by the court.
Under Indiana law, there is a presumption that there will be an equal, 50/50, division of the assets and debts of the parties. Indiana Code 31-15-7-4 sets forth what property is eligible for division and how the court is able to divide such property:
I.C. 31-15-7-4; Division of Property
(a) In an action for dissolution of marriage under IC 31-15-2-2, the court shall divide the property of the parties, whether:
(1) owned by either spouse before the marriage;
(2) acquired by either spouse in his or her own right:
(A) after the marriage; and
(B) before final separation of the parties; or
(3) acquired by their joint efforts.
(b) The court shall divide the property in a just and reasonable manner by:
(1) division of the property in kind;
(2) setting the property or parts of the property over to one (1) of the spouses and requiring either spouse to pay an amount, either in gross or in installments, that is just and proper;
(3) ordering the sale of the property under such conditions as the court prescribes and dividing the proceeds of the sale; or
(4) ordering the distribution of benefits described in IC 31-9-2-98(b)(2) or IC 31-9-2-98(b)(3) that are payable after the dissolution of marriage, by setting aside to either of the parties a percentage of those payments either by assignment or in kind at the time of receipt.
However, every divorce is very fact specific and so your particular case may not result in an equal division of the assets and debts. There are several factors a court considers that may rebut the presumption of the equal division of the marital estate. Indiana Code 31-15-7-5 sets forth those factors:
I.C. 31-15-7-5; Presumption for equal division of marital property; rebuttal
The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:
(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) 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.
(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the parties.
As the statute above indicates, those factors are not exhaustive, meaning that the court can consider additional factors and evidence not included in the statute when determining how to divide the parties’ marital estate. As such, it’s important to consult with a local attorney to see if your particular case falls within the equal division of assets or if the presumption can be rebutted.
If you are thinking about filing for a divorce or legal separation, or have a custody or paternity case, contact Adam S. Lutzke Law Offices at (317) 258-7809, or at [email protected]