Maybe? This is a common question as many people logically think if the mortgage/deed and title to a car is in both names, half the value belongs to each spouse on divorce. This brings us three closely related legal concepts that were all recently addressed in a key case decided by the Court of Appeals on November 7, 2018. This case and how it answers this question is the topic of this blog post.
The most important legal concept is Indiana is a one-pot theory state. This means that everything that the parties brought into the marriage or acquired during the marriage to the date they filed for divorce is part of the marital estate the trial court must divide when it issues its divorce decree. For example, if a party owns a home free and clear deeded in his or her name worth $500,000, it is part of the divorce estate the trial court is to divide. What this means is Indiana is not a title-theory state and even if all the assets are in one party’s name, the trial court must divide them and may give them to the other party and order the spouse who has title to transfer some of his or her interest.
This may make you ask, how the judge decides to apportion the marital estate? The Divorce Act has a statute that requires the trial court to divide the marital estate in a just and equitable manner. However, the trial court is to presume what is just is an equal division. The trial court can deviate for many factors listed in the statute and any other relevant considerations that make the division equitable. For the most part, a 60/40 division reflects the maximum amount trial courts deviate under recently reported cases. There are several other tools, such as rehab maintenance the trial court can award to make a just divorce decree.
However, all these statutes in the Divorce Act, do not make 50/50 or 60/40 just; and this presumption is not always followed by the trial court. This is where the facts of your case and how you present your evidence through your counsel make a big difference in the case. This is reflected in the new Rose case.1 Here Bozeman came into the marriage with $3 million in assets and purchased a $500,000 house for the parties that had Rose on the deed. The marriage only lasted 24 days. In this case, the trial court initially gave Rose half of the value of the home but corrected its error with Rose receiving $35,000, somewhat reflecting an increase in the value of the assets of the parties only during the marriage.
On appeal, the Court of Appeals affirmed this extreme division greater than 95/5. It rejected Rose’s argument that the trial court did not consider her economic circumstances at that time of the divorce, holding “The twenty-four-day term of married life is simply too short to evaluate the other factors as the economic circumstances and earning abilities the parties would not yet have been impacted.”
Thus, the take away from this blog post is Indiana is not a title theory state. In a divorce, it does not matter whose name the property is titled in; it can be awarded to the other spouse. Second, while the court is to presume a fifty-fifty division, it can deviate—it is incumbent on the litigant who should have an unequal division in his or her favor for a just result to put on the evidence the trial court needs to make such a deviation. That is exactly what development of evidence and good lawyering accomplished in the Rose case.
This blog is written by attorneys at Ciyou & Dixon, P.C. who handle complex division of assets and high-conflict custody cases as well as other family law cases through the state. This blog is written for general informational purposes. It is not intended as legal advice or a solicitation for services. It is an advertisement.