Property Division in Divorce

In Indiana, trial courts follow the “one marital pot” theory to determine what is marital property and how to divide that property upon divorce. The “marital pot” theory means that all assets and liabilities, owned by either Husband or Wife BEFORE and during the marriage, no matter how the property is titled, is jointly owned by the husband and wife equally and collectively. It all goes into the pot for the court to divide.

There is a legal presumption that property will be divided equally (50/50) upon divorce.¹ Thus, if neither party presents any request or evidence to support why the property should not be divided equally, it will be divided ½ to wife, and ½ to husband. The trial court may hear requests, arguments and evidence tending to show why the property should not be divided equally. The court may consider the following factors as a basis to deviate from the presumed 50/50 division:

1. The contributions of each spouse in the acquisition of the property (i.e. did one spouse acquire large sums of credit card debt and purposely concealed it from the other, or did one spouse purchase a home several years prior to the marriage that he or she still owns?)
2. Did one spouse acquire property through inheritance or a gift?
3. The economic circumstances of each spouse (i.e. does one spouse have considerably higher income than the other? Or, should the marital home go to the spouse who has primary care and custody of the children?)
4. The conduct of the spouses during the marriage relating to the dissipation of income earned or income earning ability (i.e. did one spouse gamble away large

Once all of the evidence is presented, and the trial court issues its final ruling, what if the property division is not fair and equitable?

Unlike child support and child custody issues, a property division order by a court is not modifiable. In other words, a property division is a final order. Thus, there are two options available, to remedy an unfair property division, both of which have specific time limits.

The first option is that you can file a Motion to Correct Error², which asks the trial court to relook at the case, and correct any error that occurred. Generally a Motion to Correct Error must be filed within thirty (30) days of the judgment or order. However, there are some exceptions which permit that a Motion to Correct Error may be filed beyond 30 days, but still within a reasonable time, such as fraud or new evidence that could not have been discovered prior to the hearing, and just recently became known. The Motion must specify exactly what error occurred. A good use of a Motion to Correct Error is one that seeks to correct a mathematical error or misapplication of the law.

The second option is that you can appeal a property division order. In order to effectuate an appeal, you MUST file a notice of appeal within 30 days of the final order.

It is important to keep in mind that once a trial court issues its order on property division, that order is final. If no action is taken by filing either a Motion to Correct Error, or an Appeal, once the time has elapsed to do either option, the inequitable property division will stand, and cannot be modified or corrected later, no matter how unfair. Therefore, it is very important to carefully review a final property division, and react appropriately and promptly if there has been some error by the trial court.

On the other hand, it is important to note that some property divisions take some time to accomplish, such as selling and dividing the equity in a martial residence. The trial court maintains jurisdiction to enforce it non-modifyable order.

We hope that this blog post has been helpful in giving you some insight into Indiana’s marital property division rules and laws. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.

1. Ind. Code § 31-15-7-5
2. Indiana Rules of Court Rules of Trial Procedure, Rule 59.