“I am very concerned about how the division of assets making up the marital estate may play out in my divorce. I have to be able to afford to live and need an idea of what to expect”
Unlike child-related issues, which are always subject to modification in future years, the division of assets is only made once. There is no ability to correct a “bad deal” later or make up for evidentiary shortfalls at trial.
For a low-wage-earning spouse, it is critical that the best agreement be struck or trial position advocated. Equally, for the empowered, high-income-earning spouse, she or he always seeks to minimize over-paying by a division beyond what the law mandates.
At Ciyou & Dixon, P.C. we do not leave this to chance, balancing costs of given legal tools versus the potential gain for our clients. However, to properly assess your case, we have to identify the legal issues. This requires you to help us understand your financial needs now and into the future. To convey this information to us, you must understand the fundamentals of the law controlling property division in a divorce situation.
The very notion of division of assets confuses some divorce litigants. This is because the term “assets” also implicitly includes liabilities. An asset (or liability) may range from real property (such as the land upon which the marital residence sits, but is upside down on the value) to personal property. The latter is a very broad class that may include items ranging from a TV to stocks and retirement accounts.
Ultimately, the gross marital estate includes all property of this type owned by either spouse before the marriage, property acquired during the marriage, along with anything acquired before the final separation (which is often the day the divorce is filed). The net marital estate is what is left after liabilities (what you owe) are deducted.
The trial court hearing the case is required to divide the property, or the net marital estate, in a just and reasonable manner. This is what lawyers help their clients determine and then advocate for in the court system. There are cases decided by courts that set out examples of what is just and reasonable, and they vary widely.
As a starting point, the Legislature directs trial courts to consider an equal (50/50) division as just and reasonable. By example, with a net marital estate of $100,000, each spouse would receive $50,000. However, to actually reach a just and reasonable division in any given case, a trial court judge has discretion to deviate from the 50/50 presumption.
A deviation is sometimes made for a spouse, typically a mother, who has not worked and instead stayed home to care for the children. In these cases, and for any other good reason, a trial court may decide differently.
The outside boundaries of what trial courts typically deviate is 60/40. However, in small percentage of cases, this is still not fair. For this reason, there are other tools a court may employ to reach fairness. A more common legal tool is an additional award of rehabilitative maintenance. This is an award of a sum of money, payable for up to three years, to a spouse who has been out of the workforce for a long time, and who does not have current skills, to seek educational training.
Aside from child support, which is technically for the benefit of the child, a spouse only has one chance to make his or her best case for a property division, by agreement or through trial evidence. It is thus of critical importance to understand what constitutes the gross marital estate and what your future plan for work and income is and or will be to support your needs.
What makes Ciyou & Dixon, P.C. unique is that we take a holistic approach and really push our clients to deal with the what ifs of the future. By doing so, the best decisions can then be made for what makes sense now in the division for the immediate and distant future. And at the same time, account for foreseeable problems along the way.
Ultimately, at the time the divorce is entered, Ciyou & Dixon, P.C. clients have a clear plan for the future and are well on their way to executing it — ensuring all that can be done is done for a secure future full of hope and promise. This is our mantra. If this approach to Indiana division of property in a divorce is consistent with your expectations for a divorce and for your legal team, Ciyou & Dixon, P.C. may be right for you.
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