In Indiana, all marital assets, except as otherwise excluded by law, are part of the marital estate a trial court can divide upon divorce. There is a presumption of an equal division (assets – liabilities). However, with certain professionals, this division is complex because of the complexity of what they do. This blog explores these concerns and some resolutions. Perhaps, and first, with professionals who own a business or are involved in a practice (medical, dental, law). The value of business in terms of what it could be bought or sold for varies widely from almost nothing to significant amounts. For ...
February 23, 2016Adam Hayes
Failing to Include Assets and Value Them and Informal Loans from Parents and Third Parties While emotion often overrides divorce proceedings, particularly where child custody is in dispute, it is key to identify if sufficient evidence of all assets of the marital estate are present. Marital assets also include debts. The Indiana Court of Appeals recent Barton v. Barton case makes this point. First, loans versus gifts from parents are difficult to determine. It is the litigant’s burden of proof to establish in the evidence the funds from a parent or a third party are a loan instead of a gift. Typically, ...
December 17, 2015Adam Hayes
Marriages, particularly those of a long duration, usually intermix marital property of all kinds in organic ways that can be hard for the divorce court to untangle in dividing the marital estate in a just and reasonable manner. There are many aspect of the evidence the trial court must consider. In this blog, we cover five key things that apply in most divorce cases. The first is Indiana follows a one-pot theory, whereby property owned by the parties coming into the marriage, acquired during the marriage up to the point a divorce is filed is marital property.1 Second, the net marital “property” ...
September 24, 2015Adam Hayes
In a divorce, an attorney by his or her client is supposed to present the value of all household items and other personal property items for the court to divide. The practical question this raises for the parties is how to do this. This blog provides three practice ways to value and put evidence on about the value of such items so the court has a view of the total marital estate. Big assets (homes, retirement accounts, et cetera) are easy to identify and value. Sometimes small things are not, although no party wants to re-purchase all items, like clothing, pots ...
September 22, 2015Adam Hayes
In previous blogs we have discussed what property is considered “marital” property and subject to division between the spouses when they divorce. Generally, all property owned by either spouse before or during the marriage, regardless of who is the account holder or title holder, is “marital” and divided equitably (fairly, usually 50/50). Determining what IS marital property is only the first step towards dividing it up during a divorce action. The second step is to determine the value. The court has discretion to chose any date of valuation between the date of filing (the petition for dissolution of marriage was first ...
December 16, 2014CD